CJorn^U Katu ^rljool ICibtarg KF1045.S79™915''"''''''-'''"'^ 3 1924 018 848 253 . Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018848253 The Law of Suretyship COVERING Personal Suretyship, Commercial Guaranties, Suretyship as Related to Bonds to Secure Private Obligations, Official and Judicial Bonds, Surety Companies By ARTHUR ADELBERT ^EARNS, LL. D. OF THE CLEVELAND BAR Second Edition by CLINTON DEWITT OF THE CLEVELAND BAR Lecturer upon the Law of Suretyship and Mortgages Western Reserve Law School CINCINNATI THE W. H. ANDERSON COMPANY PUBLISHERS 191S Copyright, 1902, By The W. H. Axdehsox Co. copybighic, 1915, By The W. H. Asheesok Co. PREFACE TO SECOND EDITION In the preparation of this edition about eight thousand cases have been examined and considered and from these have been cited such eases as were deemed illustrative of the present status of the law of the subject. It is believed that the revision incorporates all the important rulings since the publication of the first edition. The chapter on "Suretyship as Related to Negotiable Instru- ments" has been eliminated because the Negotiable Instrument Codes now in force in most of the states have largely supplanted the necessity of treating the subject ia a text-book. All of the additions and changes in the text have been submitted to the author and approved by him. CLINTON DB WITT. Cleveland, Oct. 20. 1915. CONTENTS CHAPTER I. THE CDNTKAiCT. SECTION. '" PAGE. 1. Suretyship defined 1 2. The nature of the contract 2 3. Personal suretyship 3 4. Heal 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 12 11a. Disability of the principal 12c 12. Disability by statute 12c 13. Surety companies 12d 14. Duress 12d 15. Fraud in the making of the contract 13 16. Consideration 15 17. Suretyship contract must be express 17 18. Ambiguous words. — How interpreted 18 19. Estoppel of promisor to deny recitals in the contract 20 20. Incompleted coaitracts of suretyship 21 21. Statutory requirements 22 22. Contracts in suretyship executed by agents 33 23. Suretyship by operation of law 24 23a. The execution of the contract 25a CHAPTEK II. THE STATUTE OlF FRAUDS. ^ 24. The purpose of the statute of frauds 26 215. The English statutfe 27 26. Meaning and scope of the word "agreement" 29 27. Same subject continued. — ^Anaierioan decisions 30 28. The "Memorandum or Note" 33 29. Same subject continued 34 30. The signature to the memorandum 36 V VI CONTKNTS. SECTION. PAGE. 31. "Special Promise" to whom made 37 32. Same. — Applied to contracts of indemnity 37 33. iSame subject continued 38 34. Same subject continued. — American decisions 40 3'5. All contracts of suretyship are within the statute of frauds . — 41 36. Credit given wholly to promisor 43 37. Joint liability of promisor and another 43 3'8. 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 46 42. Promise to pay pre-existing liability of promisor not within the statute 49 4®. Assumption of vendor's debt as part of purchase price not within 1 the statute 51 44. 1 Contract of Del Credere agent not within the statute 51 45. Pleading transactions within the statute. — ^Plaintiff's allegations. 52 46. Pleading statute as a defense 52 47. Lex Fori — ^The statute of frauds remedial 54 CHAPTER III. ^ CX)!MMEE)CIA1, GUARANTIES. 48. Scope of the subject 55 4®. Construction oNat. Bank of Gloviersville vs. 10«; Winn v». Slanford, 145 Mass. Wells, 79 N. Y. 498; Knickerbocker 302; 14 N. E. 119; Gates vs. Teb- vs. Wilcox, &3 Mich. 200; 47 N. betts, 83 Neb. 57»; 119 N. W. 1120; ^'- ^^- Kyger vs. Sipe, 89 Va. 507; 1« S. 40 TT. S. Rev. St., Sec. 5136. e. 627; Adler vs. State, 36 Ark. "Peoples Bank vs. Nat. Bank, 517; Leg vs. Yandell, 69 Tex 34- 101 U. S. 183i; Thomas vs. Bank, 40 6 S. W. 6©5; Mitchell va. Hydraulic Ndb. 501; 58 N. W. 943. gtone Co., Tex. Civ. Ai)p.; 129 S 4i<.Lionberger vs. Krieger, 88 Mo. w. 148. See post. Section 104. 160; Weare ve. Sawyer, 44 N. H. i2d THE LAW OF SURETYSHIP. 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 evas^n 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 courts take Judicial notice of the Statutes authorizing Surety companies to be accepted as Sole Surety,** but a state has no power to prescribe rates of premium to be charged ance a surety company is in every sense a private business.**" §14. Duress. A Surety or Guarantor who enters into his contract under duress is not bound 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 the principal alone has not been uniformly 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.** *2 Holandswortli vs. Common- 111 Mich. 3«1; 69 N. W. 73«; Bank wealth, 11 Bush (Ky.) 617; State of Tarboro vs. Fidelity ajid Deposit vs. Findley, lOH Mo. 368; 14 S. W. Co., 128 N. C. 366; 38 S. E. 908. Ill; Cook vs. Caraway, 39 Kan. 41; i* Miller vs. Matthews, 87 Md. Tessier vs. Crowley, 17 Neh. 207; 464; 40 Atl. 176. See post. Chapter 22 N. W. 422; Ohio & Miss. Ry. vs. VIII. Hardy, 64 Ind. 454; Kohn Bros. vs. *■*« American Surety Oo. vs. Shal- Washer, 69 Tex. 67; 6 S. W. 551; lenberger, 18S' Fed. 636. State of Kansas vs. United States *<> Ingersoll vs. Boe, 65 Barb. 346. Fidelity and Guaranty Co., 81 Kan. *» Wilkeaon vs. Hood, 66 Mo. Ap. 660; 106 Pae. 1040. 491;State vs. Brantley et al., 27 *3 Cramer vs. Tittle, 72. Cal. 12; Ala. 44; Hawes vs. Merchant, 1 12 Pac. 869; Cans vs. Carter & Curt. 136; Patterson, vs. Gibson, 81 Aiken, 77 Md. 1; 25 Atl. 663; Tra- Ga. 802; 10 S. E. 9; Owens vis. vis vs. Travis, 48 Hun 343; 1 N. Y. Mynatt, 1 Heisk. (Tenu.) 675. S. 357; Steel vs. Auditor General, THE CONTRACT. 13 Such reasoning appeajs 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 maMng of the main contract stands upon the same reasour- ing as the duress of the principal. If the principal could rescind for fraud, the promisor in suretyship should be per- mitted to assert the same right.** (2) Fraud practiced by the creditor upon the promisor, or by the principal upon the promisor wi^ t he know ledge of the creditor, will discharge the promisor.*" The creditor owes *7 Hazard vs. Griswold, 21 Fed. free exercise of his will or judgment Eep. 178 ; Peacodc et al. vs. T!he will have a like effect on the other." People, 83 111. 33 1; Haney vs. Peo- Fountain vs. Bigham, 23(5 Pa. 3'5; pie, 12 Colo. 345; 21 Pac. 3S; Gra- 84 Atl. 131. ham vs. Marks, 98 G-a. 67 ; 25 S. E. ^s Putnam vs. Schuyler, 4 Hun 931; Griffith vs. Sitgreaves, 90 Pa. (N. Y.) leS; 0*om vs. Robbins, St. 161; Schuster vs. Arena., 84 A. 36 N. Y. 365; Bennett vs. Oarey, 723; 83 N". J. L. 79. 72 Iowa 476; 34 N. W. 29il; City As to duress in the execution of Natl. Bank vs. Jordan, V3& Iowa bail bonds in criminal proceedings, 499; 117 N. W. 758. see Oak vs. Dustin, 79 Me. 23; 7 Contra — Plummer et al. vs. The Atl. 815. People, 16 111. 368. Contra — Eobinson vs. Gould, 11 In Evans vs. Keelaud, 9 Ala. 42, Cush. 55. it is held that a surety cannot Even where surety has notice of avail himself of the defense of fraud! the duress practiced on the princi- practiced by the creditor on the pal the^ courts have allowed the de- principal, unless the principal him- fense. "The relation between parent self repudiates the transaction, and child and husband and wife are '^^ Evans vs. Keeland, 9 Ala. 42 ; so close and tender that the law Waterbury vs. Andrews, 67 Mich, recognizes that threats to imprison 281; 34 N. W. 575; Weed vs. Beut- one will have substantially the same ley, 6 Hill (N. Y.) 56; Roper et al. effect on the mind of the other, and vs. Sangamon Lodge No. 6, 91 111. what will deprive the one of the 518; Ham vs. Greve, 34 Ind. 18; 14 THE LAW OF SURETYSHIP. a duty of good faith to the promisor and he is required not merely to refrain from misrepresentation and deceit, but a concealment of facts which if known to the promisor would have prevented his entering into the contract, or which increases the risk of the undertaking will amount to fraud,°° as where one accepts a Surety upon a bond for the faithful performance of the duties of his agent who had previously while in his employ embezzled his property. If he withholds this infor- mation from- the Surety, although not specifically inquired about, he cannot enforce the obligation."^ The rule is carried to the extreme in a case where a cashier of a bank was a de- faulter, but this fact was not known to the bank, who there- after accepted a Surety for the faithful performance of his duty as cashier, and the reports of the assets and liabilities of the bank, published in accordance with the acts of Congress, showed the assets of the bank to be intact, held: that since the bank directors might have discovered the prior default by the exercise of reasonable diligence, that it was a fraud upon tlie Trammell vs. Siyvaii, 215 Tex. 473; Mathews, lO CI. & Fin. 934; Frank- Bank vs. Railway Co., 66 Iowa ©32; lin Bank vs. 'Cooper, 316 Me. 179; 22 N. W. 929; Meek vs. Frantz, 171 Dougherty vs. Savage, 28 Oonn. 146; Pa. 6®2; 33 At). 413; lOampbell vs. Screwman's Benev. Assn. vs. Smith, Johnson, 41 0. S. 988; Satterfleld 70 Tex. 168; 7 S. W. 793; Dins- vs. Spier, 114 Ga. 127; 30 S. E. more vs. Tidball et al., 34 O. S. 411 ; 930 ; First Nat. Bank vs. Mattingly, Lee vs. Jones, 1'7 0. B. N. S. 482; 92 Ky. 650; 18 S. W. 940'; Putney Guardian Fire Assurance Co. vs. vs. Schmidt, 116 K. M. 400 (120 P. Thompson, 68 Oal. 208; 9 Pac. 1; 720) ; Sewell vs. Breathitt Lodge, Third Nat. Bank vs. Owen, 101 Mo. 150 Ky. 542; 150 S. W. 677. 558; 14 S. W. 632; Remington S. 50 Booth vs. Storrs et al., 75 111. M. Co. vs. Kezertee, 49 Wis. 409; 5 438; Pidcock vs. Bishop, 3 Bam. N. W. 809 ; W. €.& A. Railroad Co. & Cr. 606; Owen vs. Homan, 3 vs. Ling, 18 S. 0. 116. Macn. & G. 378 ; Oomstock vs. Gage, Contra — ^Home Ins. Oo. vs. Hol- 91 111. 328; Barnes v. Savings Bank, way, .'J5 Iowa, S7'l; 8 N. W. 457; 14'9 Iowa 367; 138 N. W. 541; I>omestic S. M. Co. vs. Jackion, 15 Lingenfelter Bros. vs. Bowman, 137 B. J. Lea 4118; Howe Mach. Oo. vs. N. W. 046; 156 la. 649. Farrington, 82 N. Y. 121; Aetna 51 Owen vs. Homan, 3 Macn. & G. pife Ins. Co. vs. Mabbett, 18 Wis. 3i78; Franklin Bank vs. Steven, 39 677; San Francisco vs. Staude, 92 Me. 532; Sooy vs. State, 39 N. J. Oal. 560; 28 Pac 778; Roper et al. Law, 135; Warren et al., vs. Branch vs. Sangamon, 91 111. 519; Cawley et al., 15 W. Va. 21 ; Railton vs. et al. vs. The People, 96 111. 249. THE CONTEACT. 15 Surety to accept him in that relation, without investigation of the previous conduct of the cashier."^ (3) Fraud practiced by the principal on the promisor mth- / out the knowledge of the creditor will not avoid the contract."^ ' §16. Consideration. In Suretyship as in other contracts a consideration is essen-. tial."* If the suretyship is concurrent with the principal con- 62 Graves vs. Lebanon Nat. Bank, 10 Bush (Ky.) 23. Contra — ^Savings Bank vs. Albee, 63 N. H. 152; liieberman vs. Wil- mington First Nat. Bank, 2 Penne- will (Del.) 416; 45 Atl. 901. The creditor is not required to disclose trivial or immaterial defaults of the principal. Bostwick vs. Van Voor- his, 911 N. Y. 353; Baglin vs. Title Guaranty & Surety 'Co., 166 Fed. 356. Neither is the creditor re- quired to disclose the financial con- dition of the principal. Smith vs. First Nat. Bank of London, IW Ky. 257; 53 S. W. 648; Farmers Nat. Bank vs. Braden, 145 Pa. 473; 22 Atl. 1045; First Natl. Bank of Han- cock vs. Johnson, 133 Mich. 700; 95 N. W. 97'5. Neither is the creditor required to disclose facts which the promisor with reasonable diligence might have ascertained for himself. Sherman vs. Harbin, 125 Iowa 174; 100 N. W. 620; Sebald vs. Citizens Deposit Bank, 31 Ky. L. Eep. 1244; lOS S. W. 130. 8s Bigelow vs. Comegys, 5 0. S. 256; Dangler vs. Baker, 36 O. S. 673; Oasoni vs. Jerome, 58 N. Y. 315; Western N. Y. Life Ins. 0>. m Clinton, 66 N. Y. 326; Taylor County vs. King et al., 73 Iowa, 153; 34 N. W. 774; MoCormick vs. Bay City, 23 Mich. 457; State vs. Peck, 53 Me. 284; Spencer vs. Handley, 5 Scott N. R. 546 ; Graves et al. vs. Tucker, 10 Smedes & M. 9; Johnston vs. Patterson, 114 Pa. 398; 6 Atl. 746; Saginaw Medicine Co. vs. Batey, 179 Mich. 691 ; 146 N. W. 329; Cunini vs. Zambarano, 89 A. 205-; 36 E. I. 122; Lovelace vs. Lovelace, 136 Ky. 452; 124 S. W. 400; Atlantic Trust & Deposit Co. VIS. Union Trust & Title Corp., liO Va. 2816; 67 S. E. 162. Contra — Stone vs. Gol Estate of Ramsay vs. Whit- beck, 183 111. 550; 56 N. E. 322. •50 House vs. Mohr, 20 111. App. 321 ; Board of Education, vs. Thomp- son, 33 0. S. 321; Deobold vs. Ojh permann. 111 N. Y. 531; 19 N. E. 9'4; United States Fidelity & Guar- anty Co. vs. Charles, 131 Ala. 608; 31 So. 558. 61 Paul vs. Stackhouse, 38 Pa. St. 302; Stanley vs. Miles & Adams, 36 Miss. 434; Williaips et al. vs. Per- kins, 21 Ark. 18; Ford vs. MeLain, 164 Mo. App. 174; 148 S. W. 190; Stroud vs. Thomas, 130 Cal. 274; 72 Pac. 10O8. THE CONTRACT. 17 §17. Suretyship contract must be express. .-- In the ordinary contracts it often occurs that obligations arise from mere implication, such as when a person orders goods from a merchant, there is an implication that he thereby agrees to pay for them, and he is accordingly so bound. Again such contracts will be implied from the conduct of parties and the surrounding circumstances, without any express terms, verbal or written, such as when one performs services for another who accepts the benefits of such services. This will ordinarily give rise to a contract by inference to pay for the services; but there is no corresponding implication in suretyship, and the engagement^ must^ alwa ys be expres s, and the promise will never be enlarged to cover the implications growing out of the lan- guage employed.'"' It does not follow from this that ambiguous: words and phrases are not in any case to be given force and effect as obligations in suretyship. To ascertain the Waning of ambiguous words and apply such meaning in the interpreta^ 62 Tlie state vs. Medary et al., 17 0. 995. "The bond speaks for itself; and, the law is that it shall so speak; and that the lia.bility of sureties is limited to the exact letter of the bond. 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 cannot have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail." Bishop vs. Freeman, 42 Mich. S33; 4 N. W. 2.90; Ludlow vs. Si- mond, 2 Cai. 1; Vinyard et al. vs. Barnes, 124 111. 346; 16 N. E. 254; Weir Plow Co. vs. Walmsley, 110 Ind. 242; 11 N. E. 232; Noyes vs. Granger, 51 Iowa 227; 1 N. W. 519; Henrie vs. Buck, 39 Kan. 381; IS Pac. 228; Nat. Bank vs. Gerke, 68 Md. 449; 13 Atl. 358; Shines, Admr., vs. Central Savings Bank, 70 Mo. 524; Lee vs. Hastings, 13 Neb. 508; 14 N. W. 476; Gunn vs. Geary, 44 Mich. 615; 7 N. W. 236; Hutchinson vs. Woodwell, 107 Pa. Et. 509'; Burson vis. Andes and wife, 83 Va. 445; 8 S. E. 249; State ex rel. Bell vs. Yates, 231 Mo. 276; 132 S. W. 672; Walker vs. State, 176 Ind. 40; 9i5 N. E. 3i53; Moore vs. Title Guaranty & Trust Co., 151 Mo. App. 256 ; 131 S. W. 477 ; Amer- ican Bonding Co. vs. Pueblo Inv. Co., 130 Fed. 17; 80 C. C. A. 97; Turner vs. Nat. Cotton Oil Co., 50 Tex. Civ. App. 468; 109 S. W. 1112; Trustees Seventh Baptist Church vs. Andrew & Thomas, 115 Md. 535.; 81 Atl. 1; Phoenix Mfg. Co. vs. Bogardus, 231 111. 528; 83 N. E. 284; Kuhl vs. Chamberlain, 'l40 Iowa 546; 118 N. W. 77'6; Daly vs. Old, 35 Utah, 74; 99 P. 460. 18 THE LAW OF SURETYSHIP. tion. of the contract is not creating obligations by implication. "In guaranties, letters of credit, and other obligations of Sure- ties, the terms used and the language employed are to have a reasonable interpretation, according to the intent of the parties as disclosed by the instrument, read in the light of surrounding circumstances and the purposes for which it was made. . . . He is not liable on an implied engagement, and his obligation cannot be extended by construction or implication, beyond the precise terms of the instrument by which he has become Surety. But in such instruments the meaning of written lan- guage is to be ascertained in the same manner and by the same rules as in other instruments; and when the meaning is ascertained, effect is to be given to it. ' ' "^ When there is fraud or mistake in the execution of the contract and the actual agreement and intention of the parties is not expressed, the contract, may be reformed in equity upon parol proof like other written instruments, and enforced against the Surety and Guar- antor."* §18. Ambiguous words — how interpreted. If the language is ambiguous, and the exact meaning cannot be ascertained, it is the policy of the law to give to the con- es Belloni vs. Freeborn, 63 N. Y. anty Oo., 195 Mo. App. 100; 134 38S; Wills vs. Eoss et al., 77 Ind. 1. S. W. 18; Aetna Indemnity Co. vs. "The contract of a surety is to be Waters, 110 Md. 673; 73 Atl. 712; construed as any other contract — American Bonding Co. vs. Pueblo that is to say, according to the in- Inv. Co., 150 Fed. 17; 80 C. C. A. tent of the parties — and the rules 97; Hurlburt vs. Ilephart, 50 Colo. for its construction are not to be 353; 116 Pac. SEl; Martin vs. confused with the rule that sureties Whites, 128 Mo. App. 117; IOC S. are favorites of the law and have ^_ gQg the risht to stand upon the strict '„, g.^" ^^ ^ . g^^ ^^_ terms of their obliprations." MoMul- -.t • • cij. i ,« ^ ^ ..^ . Icn v«. United Stales, 167 Fed. 460; ^''^''S^' ^- ^*^'^' ^° «• «• 3»4; 93 C. C. A. 96; Cbvey vs. Schiess- ^^ ^'- ^- ^^B; Wiser v«. Bla^^ily, 1 wohl, 50 Coto. 68; 114 Pae. 232; J°^"^- ^^- ^^ ' Olmstcad vs. 01m- Mystio Workers vs. United States ^teaid, 38 Conn. 309; State vs. Fidelity and Guaranty Co., 152 111. Frank, 51 Mo. 98; Smith vs. Allen App. 223; Board of Education vs. ct al., 1 N. J. Eq. 43; Clute vs. United States Fidelity and Guar- Knies, 102 N. Y. 377; 7 N. E. 181. THE CONTRACT. 19 tract £tn interpretaiion which will prevent, if possible, a for- feiture or nullification of the instrument, and two distinct theories of interpretation have been developed which are in hopeless discord. One view is that since letters of Guaranty and contracts of Surety are commercial instruments and gen- erally drawn in brief language, often loose in their structure, that it defeats the intentfon of the parties and renders such instruments unsafe as mediums of commerce to construe them with nice and technical care and that "It does hot lie in the mouth of the Guarantor to say that he may, without peril, scatter ambiguous words, by which another party is misled to his injury,'""' and hence the conclusion that ambiguous words with unascertained and doubtful meaning should be construed most strongly against the promisor and impose upon him any obligation consistent with the language employed, if the obligee shall assert and show that he acted upon such construction.'^ Opposed to this theory is the dictum of Chief Justice Mar- shall in which he holds "It is the duty of the individual who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to re- quire an explicit and plain declaration of the obligation he is about to assume. ' ' "'' This has been the basis of many holdings which adhere to the rule that ambiguous words of suretyship «5 Gates vs. McKee, 13 N. Y. 236. Co. vs. Pressed Brick Co., 191 U. S «6 Mason vs. Pritchard, 12 East. 416-42I5, holding, "If a person de- 227; Hargreave vs. Sinee, 6 Bing. liberately contracts for an uneer- 244; Eindge vs. Judson, 24 N. Y. tain liability he ought mot to com- 64; City Nat'l Bank vs. Phelps, S'B plain when that uncertainty becomes N. Y. 484; Lawrence vs. MoCalmont certain." Town of Whitestown vs. ct al., 2 How. 426; Douglas vs. Key- xitle Guaranty and Surety Co., 131. nolds, 7 Peters 122; Drummond vs. j^_ y. S. 390; Small 'Co. vs. Clax- Prestman, 12 Wheat. 515; Menard ^^^ ^ ^^ 33. g^ g ^_ ^^ vs. Scudder, 7 La. An. 386; Lee ^a. ^ , _, ., , _, , _,. , ,., „ Dick et al., 10 Peters 493; Bright ^^'' ^- ^'"'^^ ^^ ^'^^^'^^ * v«.MoKnight, 1 Sneed (Tenn.) 1S8; Guaranty Co., 239 111. 502; 88 N. Taussig et al., vs. Keid et al., 145 ^- ^OS; State vs. The Blanchard 111. 488; 32 K E. 918; Sather Construction Co., 91 Kan. 74; Lack- Banking Co. vs. Briggs Co., 138 Oal. land vs. Eenshaw, 166 S. W. 314. 724; 72 Pac. 3512; see also Guaranty «' Bussell vs. Clark, 7 Craneh 69. 20 THE tiAW OF SURETYSHIP. should be given such construction as will impose the least liabil- ity consistent with the language used.*' §19. Estoppel of promisor to deny recitals in the contract. A promisor in suretyship will be held strictly to the recitals in his contract and even though the recitals are not true in fact, he is nevertheless estopped from denying them.** This rule does not operate to estop the promisor from denying the validity of the entire contract, or from claiming the acts recited to be void.'" Neither will he be estopped from denying recitals which are inserted by fraud,^^ nor will he be estopped from asserting that the transaction was illegal/" but he will be estopped from denying the jurisdiction of the court in actions upon judicial bonds.'* ea Nicholson vs. Paget, 5 C. & P. 396; Cfutler vs. Ballou, 136 Mass. 337; Kay vs. Groves, 6 Bing. 276; White vs. Reed, 15 Ooim. 457; Al- dricks vs. Higgins, 16 Serg. & E. 212; Birdsall vs. Heacock, 32 0. S. 177; Morgan vs. Boyer, 39 O. S. 324; Gard vs. Stevens, 12 Mich. 202; American Surety Oo. vs. Koen, 49 Tex. Civ. Aipp. 98; 107 S. W. 938 ; Board of Education vs. Pudge, 4 Ga. App. 667; 62 S. E. 154; Minor vs. Woodward, 179 Mo. App. 333; 166 S. W. 865. 89 Bruce vs. U. S., 17 How. 437 ; Washington lee Co. vs. Webster, 12)5 U. S. 426; 8 S. Ct. 947; Mon- teith vs. Commonwealth, 15 Gratt. 172; Brockway vs. Petted, 79 Mich. 620; 45 N. W. 61 ; Borden et al. vs. Houston, 2 Tex. 594; May vs. May, 19 Fla. 373; Cocks vs. Barker, 43 jST. Y. 107; Harrison vs. Wilkin, W N. Y. 412; Hundley vs. Filbert, 79 Mo. 34; People vs. Huson, 78 OaL 1,54; 20 Pac. 360; Ke'.ly et al. vs. The State, etc., 25 0. S. 567 ; Gray vs. The State, 78 Ind. 68; White vs. Weatherbee, 126 Mass. 450; Wil- liamson vs. Woodman, 73 Me. 163; State of Kansas vs. United States Fidelity and Guaranty Co., 81 Kan. 660; 106 Pac. 1040; Indemnity Oo. vs. Waters, 110 Md. 673; 73 Atl. 712; Red Wing Sewer Pipe Co. vs. Donnelly, 102 Minn. 192; 113 N. W. 1. '■» Thomas vs. Burrus, 23 Miss. 550; Tinsley vs. Kirby, 17 S. C. 1; Tucker et al. vs. Statis, etc., 11 Md. 3212. 71 Henry vs. Sneed, 90 Mo. 407; 12 S. W. 663. '2 Daniels et al. vs. Barney, 22 Ind. 207 ; Thome vs. Travellers Ins. Co., 80 Pa. St. 15; Ley vs. Wise, IS La. An. 38; Leckie vs. Scott (gam- bling debt), 5 La. 631. 73 Carver vs. Carver et al., 77 Ind. 498; Harbaugh et al. vs. Albertson, 102 Ind. 60; 1 N. E. 29«; Pannills Admr. vs. CSalloway, 78 Va. 387; Hine vs. Morse, 218 U. S. 403. Holding, "Having obtained the trust and confidence of the court by aid of the security afforded by the sol- emn obligation to faithfully execute the order of the court and to pay into court the proceeds of the sale, which he undertook to make, neither the trustee so appointed, nor the surety for his performance of the trust, are in a situation to deny the regularity of the transaction." Contra — Crum vs. Wilson, 61 Miss. 233. THE CONTEAOT. 21 §20. Incompleted contracts of suretyship. When the contraot of suretyship is incomplete, by the omis- sion of wortis necessary to state the imderstanding of the par- ties, or by failure to fill out blanks where printed forms are used, such contracts if they are to be completed at all must either be brought within the ordinary rules of agency, whereby some one acts for the promisor, or must fall within some of the fixed rules of the law operating upon such incomplete writ- ings. In the absence of these controlling features, an incompleted contract will not be binding since in order to make it speak the truth, a material alteration must take place, which will operate to discharge the promisor,'* even though the alteration expresses the real understanding of the parties^ and even in cases where the contract in its altered condition is an- advantage to the promisor.'" If the contract is expieeeed by a blank indorsement, the generally accepted rule is lliat it may be completed either by operation of the rules of the law merchant, resulting in cer- tain presumptions, or by the production of extrinsic proof whereby the understanding of the parties is disclosed, and when so completed will be given force and effect.'" This position does not impugn the doctrine th^t written contracts are not to be varied by parol. " There is evidence of a contract of some kind, but its particular terms are not given on the paper but are left to be ascertained by parole." " If the promisor signs an incompleted instrument, and delivers it in that condition he authorizes, by inipUcation, the* beneficiary of such instrument to fill in all blanks which by being filled will in no way enlarge or restrict the liability on the undertaking, as, for instance, the 74 Fitzgerald vs. Staples et al., S. W. 608; U. S. vs. O'Neill, 19 Fed. 88 111. 234; Thompson vs. Massie, Eep. 567. 41 O. S. 307; Johnston, Recr. vs. "> Bethune vs. Dosder, 10 Ga. 235; May et al., 76 Ind. 293; Neff vs. Portage Bank vs. Lane, 8 0. S. 405; Horner, 63 Pa. St. 327: Marsh vs. Anderson vs. Bellenger & Ralls, 87 Griffin, 42 Iowa 403; Rhea vs. Gib- Ala. 334; 6 South. 82. son's Exr. 10 Graft. 215; Wegner ts Ante Sec. 8. vs. The State, 28 Tex. App. 419; 13 tt Barrows vs. Lane, 5 Vt. 161. 22 THE LAW OF SUKBOYSHIP. omission of the sureties' names from the body of a bond." If, however, the amount of the penalty is left blank the omis- sion cannot be supplied without the express consent of the obligor." Also the filling in of the date blank in a bail bond fixing the time for the appearance of the accused was held to be an tmauthorized act, and that the contract could not be completed in this respect without the express consent of the obligor.*" If the promisor signs an instrument in blank, and intrusts it to the principal to complete, and authorizes him to fill in such words as will express the understanding of the parties, the promisor will be bound, even though the contract when completed does not express the understanding of the parties, and enlarges the liability, providing the creditor who accepts has no knowledge of the change.*^ §21. Statutory requirements. Judicial bonds and bonds of public officers are regulated by statute, and the* requirements as to form, penalty, qualification of Sureties and approval are generally stipulated in the statutes. These provisions, however, are merely directory and for the benefit of the beneficiary of the bonds, and the Suretiefe will be Ts Potter vs. The State, 23 Ind. siCaialaron vs. McFarlane, La. 550; Neil vs. Morgan et al., 28 111. (Curry) 227; McCormick vs. Bay 524; Danker vs. Atwood, 119 Mass. City, 23 Mich. 457; Cawley et al. 146; Howell vs. Parsons, 89 N. C. vs. The People, 95 111. 249; White 230; Scheid et al. vs. Leibshultz vs. Duggan, 140 Mass. 18; Green et al., 51 Ind. 38; McLain vs. Sim- County vs. Wilhite, 29 Mo. App. ington, 37 0. S. 484; Partridge vs. 459; Stahl vs. Berger, 10 Serg. & Jones, 38 O. S. 375; Building Assn. Rawle 170; Ex Parte Kerwin, 8 vs. Cummings, 45 O. S. 664; 16 N. Cow. 118. E. 841. As to whether the delivery of a 79 Austin vs. Richardson, 1 Gratt. blank suretyship instrument by the 310; Famulener vs. Anderson et al., promisor raises an implied agency 15 0. S. 473 ; Oopeland & Brantley in the principal to fill in any blank, fB. Cunningham, 63 Ala. 394; and so bind an innocent creditor. Church vs. Noble, 24 111. 291. see South Berwick vs. Huntress, S3 Contra — State Lunatic Asylum Me. 89; Stat© vs. Pepper, 31 Ind. vs. Douglas, 77 Mo. 647. 76. 80 Wegner vs. State, 28 Tex. App. 419; 13 S. W. 608. THE CONTEACT. 23 estopped from claiming a non-confonnity to statuta If the statute requires the approval of the bond by a public officer, the Surety will not be discharged because the officer neglected his duty in tiiis respect'^ Neither will the failure to file the bond within the time prescribed by statute be a defense to the Surety.*^ Nor a failure to have the bond signed by the requi- site mimber of Sureties.'* Sureties will not be bound, how- ever, in excess of the statutory demand, and when the penalty named is greater than that stipulated in the statute the bond will be held only for the statutory requirement. '" §22. Contracts in suretyship executed by agents. The statutes of frauds in force in this country have gen- erally re-enacted the clause of the English statute which pro- vides that the vtrriting whereby one is charged with the payment of the debt of another may be signed by the party to be so charged or by " some other person thereunto by him lawfully authorized." __The general rule of agency that whatever a person may lawfully do if acting in his own right and in his own name, he may delegate to an agent,*" would be sufficient to authorize the execution of a suretyship contract by an agent, but the delegated authority must be strictly followed.'^ Neither the principal nor the creditor can act as agent of the promisor 82 Held vs. Bagwell, 58 Iowa 13S'; Cowirct— Toles vs. Adee, 84 N. Y. 12 N. W. 226; People vs„ Huson, 78 222; Roberts vs. The State, 34 Kan. Cal. 154; 20 Pac. 369; Thomas vs. 151; 8 Pae. 246; in which it was Hinkley, 19 Neb. 324; 27 N. W. held that bonds containing a penal- 231; McCracken vs. Todd, 1 Ean. ty in excess of the statutory re- 148; Boone County vs. Jones, 54 quirement are wholly void. Iowa 639 ; 2 N. W. 987 ; 7 N. W. «« Story on Agency, Sec. 6. 155; Mowbray vs. State, 88 Ind. 324. «' Stevenson vs. Hoy, 43 Pa. St. Post £ec. 166. 191; Gates vs. Bell, 3 La. Ann. 62; 83 City of Chicago vs. Gage et al., Bryan vs. Berry, 6 Cal. 394; Sta- g's 111. 593; Kelly et al. vs. The vail vs. Commonwealth, 84 Va. 246; State, 25 0. S. 567. 4 S. E. 379; Du^^an vs. Champion Post Sec. 168. Coal Co., 195 Ky. 821; 49 S. W. 958 8* The Justices vs Enms 5 Ga. vVhcre a surety company bond is ?f ^ w'U'- M ' n ' ^^'<^^^ by one claiming to be a1> 12 N. W. 840; Mears vs. Oommon- , • j. j. ,, fe •-" "" "■•^ wealth, 8 Watts (Pa.) 223. '"^^^ '" ^^''^' ^^^ ^°''^ "^^^^ ^^ 85 U. S. vs. Ambrose, 2 Fed. Rep. accompanied by a power ol attor- 552; State of Ohio vs. Findlay, 10 "ey showing authority. Anderson Ohio 51; State vs. Purcell, 31 W. vs. Southern Ry. Co., 9 Ga. App. Va. 44: 5 S. E. 301. 199; 70 S. E. 983. 24 THE LAW OF StJBETYSHIP. and bind the latter in a suretyship relation.** The agency may be established in the same manner as any other agency, and it is not necessary that the authority be in -writing.*® Ex- cept where the Statute of Frauds so provider §23. Suretyship by operation of law. An obligation in suretyship will not be implied, and never arises by act of the parties except by express contract.*" Yet the law will sometimes place persons in the situation of a Surety or Guarantor, not by imposing the liabilities of these undertakings without their assent, but by extending to persons already bound upon some other contract, the privileges of these relations. Thus, where a partnership is dissolved, one partner assuming the debts and taking the assets or continuing the business, the retiring partner is placed in the situation of a Surety for the partnership debts, and can claim the privileges of that relation as against the creditors of the firm who have notice of this arrangement.*^ While this obligation to treat another as a promisor in suretyship is imposed upon the credit- or without his assent, yet it is founded upon the highest equity, and is an enforcement of a principle of good faith in commer- cial transactions. The same situation arises where one partner 88 Farebrother vs. SimmonSj 5 10 Paige 386 ; Johnson v. MeGrud- Bar. & Aid. 333; Wright vs. Dan- er, 15 Mo. 365. nah, 2 Oamp. 203; Robinson vs. But see Hammond vs. Hannln, 21 Garth, 6 Ala. 204; Bent vs. Cobb, Mich. 374. 9 f^ray 397; Ennis vs. Wa'lp- 3 Also Post Sec. 30. Bla kf. (Ind.) 472; Brent vs. Greei »» Ante Sec. 17. 6 Leigh (Va.) 16. oi Colegrove vs. Tallman, 67 N. Y. 80 Hawkins vs. Chace, 19 Pick. 95; Williams et al. vs. Boyd, 76 Ind. 502; Ulen vs. Kittredge, 7 Mass. 286; Johnson vs. Young et al., 20 233; Irwin vs. Thompson, 4 Bibb. W. Va. 614; Thurber vs. Corbin, 51 (Ky.) 295; Mortlock vs. Buller, 10 Barb. 215; Smith vs. Shelden, 35 Ves. 292; McWhorter vs. McMahan, THE CONTRACT. 25 pledges his individual property to secure a partnership debt. The property is in the position of a Surety, and the creditor with notice must observe the rights of a Surety as against all others claiming interests in the property."^ Again where a judgment is a lien upon two pieces of land, and the owner makes a conveyance of one, the judgment creditor must there- after treat the land which was conveyed as being in the situa- tion of a Surety.** Also the vendor of land subject to a mort- gage, which the vendee agrees to pay, occupies the same relation to the mortgagee, and may insist that the rights of a surety be observed as to him.'* Mich. 42; Wilson vs. Lloyd, 16 Law Rep. Eq. 60; West vs. Chasten, 12 Fla. 315. Contra — ^Rawson et al. vs. Taylor et al., 30 0. S. 389, where it is held the retiring partner is not clothed with the privileges of » surety, un- less the creditor consents to the ar- rangement, and that an extension of time to the remaining partner did not release the retiring partner. See also Maingay vs. Lewis, 3 Ir. E. C. L. 495; Shapleigh Hardware Co. vs. Wells, 90 Tex. 110; 37 S. W. 411; MeAreavy vs. Magirl, 123 Iowa 605; 99 N. W. 193; First Nat. Bank vs. Finck, 100 Wis. 446; 76 N. W. 608; Dean & Co. vs. Collins, 15 N. D. 535; 108 N. W. 242. »2 Averill vs. Loucks, 6 Barb. 470. '3 Lowry vs. McKinney, 68 Pa. St. 294. 9*Calvo vs. Davies, 73 N. Y. 211; Ayers vs. Dixon. 78 N. Y. 318; Johnson vs. Zink, 51 N. Y. 333; Wilcox vs. Campbell, 106 N. Y. 325; 12 N. E. 823; Ellis et al. vs. John- son, 96 Ind. 383; Curry vs. Hale et al., 15 W. Va. 867; Huyler vs. Atwood, 26 N. J. Eq. 504; Brown vs. Kirk, 20 Mo. App. 524; Orrick vs. Durham, 79 Mo. 174; Union Mu- tual Life Ins. Co. vs. Hanford, 27 Fed. Eep. 588 (affirmed 143 U. S. 187); Terry vs. Groves, 258 Mo. 450; 167 S. W. 563. Contra — Shepherd vs. May, 115 U. S. 505; 6 S. Ct. 119. In this case, the court holds that the burdens of suretyship cannot be imposed upon the vendee without his consent. See Wayman vs. Jones, 58 Mo. App. 319, Smith, J.: "There is no distinction between a suretyship created with the consent of the cred- itor (vendee) and that which arises by operation of law." 25ffl THE LiAW OP SURETYSHIP. §23a. The execution of the contract. The name of the promisor in suretyship must be aflSxed to the agreement, or to some memorandum thereof.'' Partieo signing upon condition that others sign as principals, or co-sureties, will not be bound xinless such condition is com- plied with, provided the obligee accepts the instrument with notice of such condition,"" or with knowledge of facts which put him upon inquiry,"" unless such condition is waived by the promisor, either expressly or by conduct amounting to estoppel."* sB'See Post Chapter II. 96 Taylor County vs. King, 73 la. 153; 34 N. W. 774; Rhode vs. Mo- Lean, 101 111. 467; Clark vs. Bryce, 64 Ga. 486; Tidball vs. Halley, 48 Cal. 610; Harris vs. Eegester, 70 Md. 109; 16 Atl. 386; Board of Education vs. Eobinson, 81 Minn. 305; 84N.W. 105; Farmers Bank vs. Hunt, 124 N. C. 171; 32 S. E. 546; Columbia Ave. Bank & Trust Co. vs. King, 227 Pa. 308; 76 Atl. 18; Bel- den vs. Hurlbut, 94 Wis. 562; 60 N. W. 3'57; Lemp Brewing Co. vs. Secor, 21 Okl. 537; 96 Pac. 636; French vs. Hicks, 52 Tex. Civ. App. 427; 114 S. W. 691; Sellers vs. Ter- ritory, 121 P. 228; 32 Okl. 147. Contra — Surety discharged even though creditor had no knowledge of conditions. Union Pacific Tea Co. vs. Dick, 89 Atl. 204; 87 Conn. 711. »7 Crawford vs. Owens, 79 S. C. 59; 60 S. E. 236; Benton Co. Sav. Bank vs. Boddicker, 117 la. 407; 90 N. W. 822; Baker Co. vs. Hunt- ington, 46 Ore. 275; 79 Pac. 187; Husai V. Clifford, 179 Ind. 173; 100 N. E. 466; Goodyear Dental Vulcanite Co. vs. Bacon, 151 Mass. 460; 24 N. E. 404; French v. Hicks, 52 Tex. Civ. App. 427; 114 S. W. 691; People vs. Sharp, 133 Mich. 378; 94 N. W. 1074; American Ra- diator Co. vs. American Bonding Co., 72 Neb. 100; 100 N. W. 138; Baker County vs. Huntington, 47 Ore. 275; 83 Pac. 532. Contra — ^Where the principal named in the bond would be liable in the absence of the bond for the acts or omissions which constitute the breach in the suit, the failure of the principal to execute the bond will not discharge the surety who has signed it and permitted it to be delivered to the obligee. Empire State Surety Co. vs. Carroll Coun- ty, 194 F. 593 ; Star Grocer Co. vb. Bradford, 74 S. E. 509; 70 W. Va. 496; Title Guaranty & Surety Co. vs. Schmidt, 213 Fed. 199. »8 Middleboro Nat'I. Bank vs. Richards, 55 Neb. 682; 76 N". W. 528; White S. M. Co. vs. Saxon, 121 Ala. 399; 25 So. 784. THE CONTRACT. 25& The condition of co-suretyship may be satisfied, although the parties sign different instruments, provided they relate to the same liability."" An agreement to become surety does not amount to a contract of suretyship."" , If all persons named in the body of the instrument do not sign, it is held to be sufficient to put the obligee upon inquiry. KsSnow vs. Brown, 100 Ga. 117; loo Vogelsang vs. Taylor (Tex. 28 S. E. 77; Rudolf vs. Malone, 104 Civ. App.), 80 S. W. 637; Teasley Wis. 470; 80 N. W. 743. vs. Kay, 9 Ga. App. 649; 72 S. E. 43. CHAPTER II. THE STATUTE OF FRAUDS, Sec. 24. The Purpose of the Statute of Frauds. Sec. 25. The English Statute. Sec. 26. Meaning and Scope of the Word "Agreement." Sec. 27. Same Subject Continued. American Decisions. Sec. 28. The "Memorandum or Note." Sec. 29. Same Subject Continued. Sec. 30. The Signature to the Memorandum. Sec. 31. "Special Promise" — To whom Made. Sec. 32. Same. — Applied to Contracts of Indemnity. Sec. 33. Same Subject Continued. Sec. 34. Same Subject Continued. American Decisions. Sec. 35. All Contracts of Suretyship are Within the Statute of Frauds. Sec. 36. Credit Given Wholly to the Promisor. Sec. 37. Joint Liability of Promisor and Another. Sec. 38. Discharge of Original Debtor. Sec. 39. Consideration Beneficial to Promisor. Co-Existing Liability of Another is not Always a Test of Suretyship. Sec. 40. Promise to pay Debt of Another out of Property of Debtor in Promisor's Hands. Sec. 41. Release of Liens and Securities by Creditor as Basis of Orig- inal Promise. Sec 42. Promise to Pay Pre-Existing Liability of Promisor not Within the Statute. Sec. 43. Assumption of Vendor's Debt as Part of Purchase Price not Within the Statute. Sec 44. Contract of Del Credere Agent not Within the Statute. Sec 45. Pleading Transactions Within the Statute. Plaintiff's Alle- gations. Sec 46. Pleading Statute as a Defense. Sec. 47. Lex Fori. The Statute of Frauds Remedial. $24. The purpose of the statute of frauds. The purpose of the modem legislative enactments of the Statute of Frauds is doubtless more extensive and more practi- THE STATUTE OF FRAUDS. 37 cal than that recited in the original English statute which was there expressed as the "prevention of many fraudulent prac- tices, which are commonly endeavored to be upheld by perjury and subornation of perjury." It is not merely to prevent false swearing that such statutes are now considered iiseful, but the deliberate judgment and experience of men has established the necessity of reducing certain transactions to writing in 1 order to secure justice by excluding the uncertain and defective recollection of witnesses. It was conceived that important questions relating to land titles, involving agreements to convey or incumber, agreements charging one personally who occupies a trust position, agree- ments not to be performed for a long time in the future, and a greements to pay t he debt of an other shi)uld_nQt_he_e5tablished by any evidence that might be sup plied through perju ry, misun- derstanding of spoken words or innue ndo.* The practical wisdom of this position is corroborated by the universal acceptance of the English Statute of Frauds in all places where the common law prevails and by the persistent spirit with which the statute has been judicially administered. It has thus become an axiom of Suretyship that such con-; tracts must always take into account the provisions of the Statute of Frauds and so be reduced to writing. §25. The English Statute. The English Statute of Frauds is supposed to have been * "The general object of the Stat- cases, unless there was a memo- ute was, to take away the teinpta- randum in writing. The object of tion to commit fraud by perjury in both was, that the ground and important matters, by making it foundation of the action should be requisite in such cases for the par- in writing and should not depend ties to commit the circumstances to on parol testimony." Saunders vs. writing. The particular object of Wakefield, 4 Bara & Aid. 595, Hol- the fourth clause was to prevent royd, J. any action being brought in certain 28 ■■■•■>■['' THE LAW OF SUEBTTSHIP. drafted by Lord Hale ^ although not passed ' by the House of Lords until after his death. That part of the Statute relating to Suretyship reads as follows : " No action shall be brought whereby to charge the defendant upon any special promise to' answer for the debt, default or miscarriages of another person; unless the agreement upon which action shall be brought^ or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized." ° This has been sub- stantially re-enacted in all the states. The most notable ex- ceptions being the statutes in Alabama, California and Dela- ware, which provide that the agent who signs his principal's name to an obligation within the statute must be authorized in writing so to do,* and the provision of the Kentucky Statute which provides that an agent cannot bind his principal as a Surety unless his authority is in writing," while in Nevada and Wyoming no provision appears to be made for the execution by an agent^ of the suretyship contract vsdthin the statute.* A further variance from the English statute may be noted in that a number of the states have enacted that verbal agree- ments to pay the debt of another are wholly " void," as dis- tinguished from the English statute which provides merely that iWain vs. Warlters, 5 East 16; 3 29 Chas. 11, Chap. 3, Section 4. but see Ash vs. Abdy, 3 Swanst. The English statute is in force in 664, where Lord Nottingham says: the District of Columbia. Huntley "I have reason to know the mean- vs. Huntley, 114 U. S. 394; 5 S. Ct. ing of this law for it had its first 884. rise from me, who brought the bill No statute has been enacted in into the Lord's House, though it Maryland and New Mexico, and the afterwards received some additions English statute is considered in and improvements from the Judges force as a part of the Common Law. and Civilians." It may be doubted Sibley vs. Williams, 3 Gill. & Johns, whether this was intended as hl (Md.) 62; Childers vs. Talbott, 4 claim for the authorship of the bill N. M. 168; 16 Pae. Rep. 275. ^ or merely that he introduced it in * Alabama Code, Sec. 2152; Cali- the House of Lords. fornia Code, Sec. 2309. 2 The exact date of the passage of " Kentucky Statutes, Sec. 482. the act cannot be definitely ascer- "Statutes of Nevada, Sec. 2630; tained, but the bill recites that it Revised Statutes of Wyoming, See. goes into effect June 24, 1677. 2953. THE STATUTE OF FEAUDS. 29 " No action shall be brought" ' The English statute: and those that follow it in this respect operate only on the remedy, a ver- bal contract being entirely valid,* but by reason of the statute not enforceable by action. §26. Keaning and scope of the word " agreement." The English statute is loosely constructed, and although its ambiguities are patent, and became the subject of controversy in the very beginning, yet the Statute was almost literally trans- planted in many states, thus creating new fields of disputation that might easily have been avoided by a revision. The Statute reads that no action shall be brought on the " promise " unless the " agreemen t " or " some memorandum or note thereof" is in writing. It is, therefore, important to 7 Alabama Code, See. 2152; Cali- fornia Civil Code, Sec. 1624; Colo- rado Statutes, Sec. 2025; Montana Code, Sec. 223; Michigan Compiled Laws, Sec. 9515; K'ebraska Statutes, Chap. 32, Sec. 8; New York Hevised Statutes, Part II, Chap. 7; Ne- vada Statutes, Sec. 2630; North Dakota Civil Code, Sec. 3887; Ore- gon Annotated Laws, Sec. 785; Utah Laws, Sec. 2467; Washington Gen. Statutes, Sec. 2432; Wiscon- sin Statutes, Sec. 2307; Wyoming Revised Statutes, See. 2953. 8 Stone vs. Dennison, 13 Pick. 1; Beal vs. Brown, 13 Allen 114; Ryan vs. Tomlinson, 39 Cal. 639; Simpson vs. Hall, 47 Conn. 417. In New York, the statute ex- pressly provides that contracts named in the statute shall be void. " A contract void by the statute is void for all purposes. It confers no right and creates no obligation as between the parties to it; and no claim can be founded upon it as against third persons." Andrews, J. Dung vs. Parker, 52 N. Y. 496. But see Crane vs. Powell, 139 N. Y. 379; 34 N. E. 911, where it is held that verbal contracts within the provisions of the statute may be enforced providing the defendant does not specially plead the statute. In no other state where the Court has so held does the statute read as in New York. In other jurisdic- tions where failure to plead the statute is held a waiver, it is put upon the ground that the statute does not make the contract void but merely prohibits action being main- tained upon it. Child vs. Pearl, 43 Vt. 224; La Du-King Mnfg. Co. vs. La Du, 36 Minn. 473; 31 N. W. 938; Lowman vs. Sheets, 124 Ind. 416; 24 N. E.' 351. Beard vs. Converse, 84 III. 515, Scott, J. "The general rule, if a party would avail of the Statute of Frauds as a defense, he must plead it, has always been adhered to in this State. The reason for the rule is obvious, for a contract within the Statute of Frauds is not absolutely void, but only voidable, at the election of the party against whom it is sought to be enforced," 30 THE LAW OF 8UEETYSHIP.. know what the word *' agreement " means in order to determine what is necessary to be in writing. A promise may be the result of an agreement, something which grows out of an agreement. An agreement moreover, etymologically as well as by proper legal construction, seems to contemplate a compact by two or more persons. " An agreement is aggregatio men- tium, viz. when two or more minds are united in a thing done, or to be done. A mutual assent to do a thing." * It is mani- fest, therefore, that such a construction might be given the word ■' agreement " as used in the Statute, which would require tne writing not only to express mutuality, but also to set out the entire bargain, including the consideration for the promise. Such was the conclusion reached in Wain vs. Warlters *" de- cided in 1804, the court holding that " promise " and " agree- ment " did not each mean the same thing, and that it was not sufficient to satisfy the requirements of the Statute that the imilateral " promise " of the Surety was in writing but that the terms under which he sigaed^ the consideration, for his proniise, must be in writing. The same question was again elaborately discussed by the Judges of the King's Bench in. Saunders vs. Wakefield,^' and the holding adhered to and there- after accepted as the English law " until by the Mercantile Law Amendment^* in 1856 it became unnecessary to express the consideration in writing. §27. Same subject continued. — American decisions. There is no uniformity of holding in this country. In some states the legislature has obviated the difficulty by omitting the word " agreement " altogether ^* from the suretyship clause of the Statute, resulting in such case in the holding that the » Com. Dig., Tit. Agreement, A, 1. Williams, 5 Barn. & Ad. 1109 10 5 East 10. Clancy vs. Piggott, 2 Ad. & Ell. 473 "4 Barn. & Aid. 595. Raikes vs. Todff, 8 Ad. & Ell. 846 12 Jenkins vs. Reynolds, 3 Brod. Sweet vs. Lee^ 3 Man. & 6. 452 t Bing. 14; Morley vs. Boothby, 3 Bainbridge vs. Wade, 16 Ad. & Ell. Bing. 107; Hawes vs. Armstrong, 1 N. S. 89. Bing. (N. C.) 761; Cole vs. Dyer, i8 19 & 20 Viet. Chap. 97. 1 Cromp. & Jerv. 461 ; James vs. i« California Civil Code, Sec. 1624, THE STATUTE OF JfKAUDS. ol promise only need be in writing and that the " agreement" or the terms or consideration upon which the promise is based may be shown by parol. Also in quite a number of the states, the Statute has coupled the words promise and agree- ment in such a way that the courts in those states have appar- ently no difficulty in holding that the promise alone need be in writing.^" But the Statute in some states adopts literally the English provision and recites, without the alternative clause, that the " agreement " must be in writing. This puts upon the courts the direct responsibility of determining whether they will adopt the English construction or sustain the more diffi- cult position that notwithstanding the language used in the Statute it is the promise only and not the " agreement" that i must be in writing. In Massachusetts the court held that " agreement " was used in the Statute in a popular and not in a technical legal sense and that the word should be treated as synonymous with prom- ise^ and that if the promise is in writing without any recital in the writing of the consideration upon which the promise is founded there is a suffioent compliance with the Statute.** 1° The Statute of Frauds in Ten- quires that the agreement express nessee reads: "No action shall be the foiis'deration, Sec. 4289. brought whereby to charge the de- Kentuckif — ^RatlifF vs. Trout, 6 J. fendant upon any special promise J. Marsh. 605, to answer for the debt, default or Florida — Dorman vs. Bigelow, 1 miscarriage of another person un- Fla. 281. less the promise or agreement, upon is Packard vs. Richardson, 17 which such action shall be brought, Mass. 121 (1821). The statute in or some memorandum or note there- Massachusetts now provides : " The of, shall be in writing, etc." Sec. consideration of such promise, con- 3142, Code of Tennessee; Taylor vs. tract or agreement need not be set Boss, 3 Yerg. 330; Campbell vs. forth or expressed in the writing Findley, 3 Humph. 330. signed by the party to be charged The same form of the statute is therewith but may be proved by any the basis of a similar holding in other legal evidence." It has often Virginia — Violett vs. Patton, 5 happened in the development of our Cranch (L. S.) 142. law that a "judicial repeal" of an Mississippi — ^Wren vs. Pearce, 4 existing statute has shortly been Smed. & M. 91. followed by legislative action where- Alabama — ^Thompson vs. Hall, 16 by the statute is made to conform Ala. 204. The Ala. Code now re- to the view of the Court. Other 32 THE LAW OF SUEBTTSHIP. In New York, however, the English holding received the sanction of the courts,^^ but it being somewhat doubtful wheth- er such holding would stand, and the decisions in New York becoming conflicting,^* the earlier opinions were vindicated by amendment to the Statute requiring the consideration to ex- pressly appear in the writing.^' But in 1863, the Statute was again amended by restoring the Statute to its original English form and so restoring the original rule, that, although there need be no definite expression of consideration in the writing, yet all the substantial and material requirements of the contract must appear in the writing from which a consideration can at least be implied.^" In Illinois and Indiana,'^ although the courts followed the English construction and held that the consideration must be expressed in writing, the legislature subsequently repudiated tlie principle and provided that the consideration may be shown by parol. The conflicting opinions in American courts upon this subject, as indicated by the citations made in this section, have a practical importance in connection with the fact that States besides Massachusetts have, i» Brewster vs. Silence, 8 N. Y. however, repudiated the doctrine of 207. Wain vs. Warlters, without modi- •" Drake vs. Seaman, 97 N. Y. fying their statute. 234; Barney vs. Forbes, 118 K. Y. Connecticut — Sage vs. Wilcox, 6 580; 23 N. E. 890. Conn. 81. 21 Patmor vs. Haggard, 78 111. Maine — Levy vs. Merrill, 4 Greenl. 607 ; Gregory vs. Logan, 7 Blackf. 180; Gillighan vs. Boardman, 29 (Ind.) 112. Me. 79. The English interpretation that Missouri — Bean vs. Valle. 2 Mo. the "agreement" showing the con- 126; Hulsa vs. Halsa, 8 Mo. 303. sideration must be in writing has North Ca/rolina — ^Miller vs. Irvine, been followed in 1 Dev. & Bat. Law (N. C.) 103; Ash- New Hampshire — ^Neelson vs. ford vs. Robinson, 8 Ired. Law, 114. Sanborne, 2 N. H. 413; Underwood Ohio—Reei vs. Evans, 17 0. 128. vs. Campbell, 14 N. H. 393. Pennsylvania — Moore vs. Eisa- New Jersey — ^Laing vs. Lee, 20 man, 201 Pa. 190; 50 Atl. 982. N. J. Law, 337. Vermont — Smith vs. Ide, 3 Vt. Delaware — Weldin vs. Porter, 4 290; Patchin vs. Swift, 21 Vt. 292. Houst. 236. 17 Sears vs. Brink, 3 Johns. 210; Maryland — ^Hutton vs. Padgett, Kerr vs. Shaw, 13 Johns. 236. 26 Md. 228; Elliott vs. Giese, 7 18 Leonard vs. Vredenburgh, 8 Harr. & J. 457. Johns. 29. Georgia — ^Hargroves vs. Cooke, 15 Ga. 321. THE STATUTE OF FRAUDS. 33 the Statute of Frauds in most jurisdictions affects merely the remedy ^^ and that the Lex Fori will he' enforced whatever the interpretation in the state where the contract is made.'* ^28. The "memorandum or note." An oral promise to pay the debt of another will be binding providing the promisor or his agent affixes his signature to some ^vritten " memorandum or note " of the promise. This mem- orandum is not necessarily the contract itself. It may be mere- ly preliminary to the contract, and set out the terms upon which the parties finally agree. If the memorandum is in writing the " agreement " may rest in parol, and of course^ if the eon- tract or agreement is in writing, there is no necessity for a written memorandum. So that a mere proposal to contract in suretyship which is in writing, will satisfy the Statute of Frauds, even though the contract or agreement finally entered into is verbal ; and sudi verbal contract may be enforced. It was held that a resolution of a board of directors of a railway company duly signed by the secretary, setting out the terms upon which the railway company proposed to contract, which terms were thereafter verbally accepted and agreed to by the parties to whom they were delivered, brought the trans- action within the provisions of the Statute and that the mem- OTandum being in writing, the subsequent agreement, though verbal, could be enforced.^* 22 Ante Sec. 25. the party to be charged within the 23 Post Sec. 47. meaning of the Statute of Frauds." 2* Himrod Furnace Co. vs. The See also Reuss vs. Picksley, L. R., Cleveland & Mahoning Railroad Co., 1 Ex. 342; Stewart vs. Eddowes, L. 22 0. S. 451. R., 9 C. P. 211; Sanborn vs. Flag- In Argus Co. vs. Mayor of Al- ler, 9 Allen 474; W. U. Tel. Co. vs. 55 N. Y. 495, the Common C. & P. R. R. Co., 86 III. 246 ; Vind- Council passed a resolution which quest vs. Perky, 16 Neb. 284; 20 N. was duly engrossed upon the min- W. 301 ; Howe vs. Watson, 179 Miss, utes of its proceedings and signed 30; 60 N. E. 415; Willis vs. Ellis, by the clerk. The resolutions set 98 Miss. 197; 53 So. 498; Friendly out terms and conditions for the vs. Elwert, 57 Ore. 590; 112 P. 1085. publication of the proceedings of Contra — Linn vs. McLean, 85 Ala. the Council and thereafter a verbal 250; 4 So. 777; Koch vs. Williams, contract was made for the printing 82 Wis. 186 ; 52 N. W. 257. in accordance with the terms of the Sb also if the proposal to contract resolution. The contract by its is verbal, but the acceptance is in terms was not to be performed writing, the contract will be en- within a year but it was held "Such forceable under the statute. Troy resolution constitutes a note or Fertilizer Co. vs. Logan, 96 Ala. 619- memorandum in writing signed by 12 So. 712. M THE LAW OP SUEETYSHIP. Again parties agree verbally to exchange pieces of land which they each respectively own, a difference in cash to be paid by one. This party gives his check to the other in part payment and takes a receipt which recites the terms and conditions of the transaction. It was held that such verbal contract was made valid under the Statute by the memorandum in writing as evidenced by the dieck and receipt. "'* The Statute does not require the " memorandum " to be signed by both parties. It haa been urged that the Statute does not contemplate the making of an instrument which can not be enforced against tibe other party, becaiise not signed by him, and which creates merely an optional liability against the one who signs, ^* but such a position is not in accord with the very explicit language of the Statute. Furthermore, it is not the " memorandum or note " which constitutes the agree- ment by which the parties are bound. The unilateral written memorandum being merely the instrument whereby the statute is satisfied, without which the contract cannot be enforced. But if it be true that the memorandum lacks the element of mutuality necessary to a binding compact, the party who asserts a legal right upon such memorandum by bringing action upon it, thereby supplies such deficiency. §29. Same subject continued. It is not necessary that the " memorandum or note " should be all upon one paper. Two or more papers taken together may 20 Raubitschek vs. Blank, 80 N. In Bailey vs. Sweeting, 9 C. B. N. Y. 478. S. 843, the original transaction was It is clear that the statute does an oral agreement voidable by the not require the contract to be in statute: subsequently the promisor writing if the evidence of the con- agreed by letter to pay the debt and tract is in writing; yet the memo- the letter was held sufiBcient as a randum differs from mere evidence memorandum to satisfy the statute. in one important respect. It can- See also Townsend vs. Hargraves, not be used unless in existence be- 118 Mass. 325. fore the action is brought. Bill vs. asLaurenson vs. Butler, 1 Sch. ft Bament, 9 M. & W. 36. Although Lef. 13, per Lord Redesdale. See retroactive effect may be given the Justice vs. Lany, 42 N. Y. 495, for memorandum so as to validate a a very full discussion of the views prior oral agreement. expressed by Lord Redesdale. THE STATUTE OF PKAUDS. 35 constitute the " memorandum " and it is sufficient if one of the papers is signed by the party to be charged, providing the one which is signed incorporates by reference the other papers.^' A different question arises where no reference is made in the signed memorandum, and the connection with other un- signed papers must be shown by parol. To construe papers so connected as constituting together the memorandimi required by the Statute would introduce all the mischief which the Statute was intended to prevent.^* If, however, each of the papers considered is signed by the party to be charged, it is (not necessary that they should specifically refer to each other and if by inspection and comparison, the coincidence of names, dates, amounts, and description of property indicate to a rea- sonable certainty that such papers are connected with the same transaction, they may be construed together for the purpose of establishing the memorandum required by the Statute."" The result of the authorities seems to be that the " memo- randum or note" need not be in such form as to constitute a ^'Morton vs. Dean, 13 Met. 385; Jackson vs. Lowe, 1 Bing. 9; Do- bell vs. Hutchinson, 3 Ad. & Ell. 355; Scarlett vs. Stein, 40 Md. 512; Washington Ice Co. vs. Webster, 62 Me. 341; Williams vs. Morris, 95 U. S. 456. Where an unsigned paper is to be incorporated by reference it is held to be necessary that the unsigned paper be already in existence. In Wood vs. Midgley, 5 De G. M. & G. 41, the reference was to an agree- ment that was to be prepared and the Court held the paper could not be used as a part of the memoran- dum. See also Brodie vs. St. Paul, 1 Ves. Jr. 326. But see Jenkins vs. Harrison, 66 Ala. 345. 28 Salmon Falls Mnfg. Co. vs. Goddard (Dissenting opinion of Curtis, J.) 14 How. (U. S.) 446. The opinion of the majority of the Court in this case is clearly against the weight of the authori- ties of this country and England and is discredited by » more recent case in the same court. See Grafton vs. Cummings, 90 U. S. 100. Wiley vs. Eoberts, 27 Mo. 388; Nichols vs. Johnson, 10 Conn. 192; O'Donnell vs. Leeman, 43 Me. 158; iClark vs. Chamberlin, 112 Mass. 19; Eidgway vs. Ingram, 50 Ind. 145; Schafer vs. Farmers' & Me- chanics' Bank, 59 Pa. St. 144; John- son vs. Buck, 35 N. J. L. 338; Parkhurst vs. Van Cortlandt, 1 Johns. Ch. 274; Patt vs. Gerst, 149 Ala. 287; 42 So. 1001; Mead vs. White, 53 Wash. 638; 102 P. 753; Ballantine vs. Yung Wing, 146 Fed. 621. 2»Wilkinson vs. Evans, L. E., 1 C. P. 407 ; Ide vs. Stanton, 15 Vt. 685; Work vs. Cowhick, 81 111. 317; Thayer vs. Luce, 22 0. S. 62; Beck- with vs. Talbot, 95 U. S. 289; Peck vs. Vandemark, 99 N. Y. 29; 1 N. E. 41. 36 THE LAW OF SUEETYSHIP. contract, but must amount to written evidence of it, and this evidence is supplied in conformity to the Statute, whenever A\ the essential elements of the bargain can be deduced from the writing or from any number of writings signed by the party, the meaning of which can be ascertained to a certainty without resorting to oral proof. The Court may construe these writ- ings, but no substantive fact not stated in the writing can be supplied. §30. The signature to the memorandtun. The Statute requires the memorandum to be sighed. It may be signed by initials ^° o-r by the mark of the pshrty.*^ Even a printed signature is sufficient if affixed by authority, or if there is evidence of its adoption by the party to be charged.''' It is not necessary that the signature be found at the foot of the writing. If the name is placed so as to authenticate the instru- ment as the act of the party, and is put there by the party himself or his duly authorized agent, it is immaterial whether it appears at the top, at the bottom or in the body of the -writing.'' Where the memorandum is in ihe form of a tele- gram, the signature upon the blanks used by the sender is suffi- cient,'* and the signature may be affixed by an agent constituted without writing,"* or if the agency is wholly unauthorized, a subsequent ratification will validate the signature. so Phillimore vs. Barry, 1 Camp. »s Evans vs. Hoare, L. R. 1 Q. B. 513; Salmon Palls Mnfg. Co. vs. 593; Hawkins vs. Chaee, 19 Pick. Goddard, 14 How. (U. S.) 446; .502; McConnell vs. Brillhart, 17 Sanborn vs. Flagler, 9 Allen 474. 111. 354; 2 Smiths Leading Cases, ?i Schneider vs. Norris, 2 Maul & 249. Sel. 286; Morris vs. Kniffin, .37 »* Goodwin vs. Francis, L. R. 5 C. Barb. 336. P. 295; Smith vs. Easton, 54 Md. s^Drury vs. Young, 58 Md. 346; 138; Brewer vs. Horst Lachmund The New York statute requires Co., 127 Cal. 643; 60 Pac. 418. the writing to be "subscribed." siiAnte See. 22; Rutenberg vs. This has been interpreted to mean Main, 47 Cal. 213; Worrall vs. a manual writing of the name, and Munn, 5 N. Y. 229 ; Yerby vs. Grigs- that a printed signature is not suf- by, 9 Leigh 387 ; Conaway vs. ficient. Vielie vs. Osgood, 8 Barb. Sweeney, 24 W. Va. 643. 130; Davis vs. Shields, 26 Wend. Contra — Bullard vs. Johns, 50 341. Ala. 382. THE STATUTE OF FBAITDS. 37 §31. " Special promise " — To whom made. ■ A promise made to the debtor to pay Mb debt is not within the statute and need not be in writing, although the statute does not in terms state to whom the promise contemplated by it is to be made, yet it is held to apply only to promises made to a person to whom another is answerable^'' When one promises the maker of a note that he will pay it for him, this is not a suretyship contract wiliiin the meaning of the statute. §32. Same — Applied to contracts of indemnity. The interpretation given by the courts in the citations of the preceding section, as to whom the promise must run, dis- poses of the somewhat vexed question involved in Contracts of Indemnity. The latter undertaking is an engagement to make good or save another from a loss upon some obligation which he has or is about to incur to a third party and is not a promise made to one to whom another is answerable. In other words, the prom- ise is to the debtor and not to the creditor. There is no appar- ent difference in principle between a promise to a debtor to pay his obligation and a promise to indemnify him against it. If the promise is merely to indemnify another upon a lia- bility which he incurs to a third, there is very little, if any, conflict of authority but that it is not within the statute and so need not be in writing/^ In Alabama the Statute of Root, 17 Mass. 229 ; Chapin vs. Lap- Frauds requires the authority of ham, 20 Pick. 467; Tighe vs. Mor- the agent to be in writing. rison, 116 N. Y. 263; 22 N. E. 164; But see Caperton vs. Gray, 4 Hoyle vs. Hoyle, L. R. 1 Ch. 84; Yerg. (Tenn.) 563, where verbal Enos vs. Anderson, 40 Colo. 395; authority to sign another's name as 93 P. 475 ; Mize vs. Mashburn, 8 Ga. security for the costs was held in- App. 408; 69 S. E. 316; Hedden vs. sufficient. Schueblin, 126 Mo. App. 478; 104 3« Eastwood vs. Kenyon, 11 Ad. S. W. 887. & EU. 438 ; Beaman vs. Russell, 20 3' Hull vs. Brown, 35 Wis. 652 Vt. 205; Nelson vs. First National Green vs. Brookins, 23 Mich. 48 Bank, 48 111. 36; Meyer vs. Hart- Marcy vs. Crawford, 16 Conn. 549 man, 72 111. 442; Hargreaves vs. Mays vs. Joseph, 34 0. S. 22; Lerch Parsons, 13 Mees. & Wels. 561; vs. Gallup, 67 Cal. 595;' 8 Pac. 322; Grim vs. Fitch, 53 Ind. 214; Goetz Ferrell vs. Millican, 156 S. W. 230; vs. Foos, 14 Minn. 265; Shook vs. Partin vs. Prince, 75 S. E. 1080; 159 Vanmater, 22 Wis. 532; Colt vs. N. C. 553. \ 38 THE LAW OF SUEETTSHIP. The difficulty, if any, arises in those transactions involving a fourth party, and there is some confusion in this class of cases, which apparently results more from the reasoning of some of the decisions, than from any error in the conclusions reached. Thomas vs. Cook, decided in 1828, presented the question as to whether a verbal promise to indemnify a second party as Surety upon a bond of a third party, which bond was given by the third party to secure his debt to a fourth party, is an undertaking within the Statute of Frauds. It was held that the promise was not within the Statute of Frauds and need not be in writing, and such is the law of England today. This relation of the parties involves a contingent liability of the third party, the principal debtor, to his Surety, the second party, since if the Surety should pay the debt, his principal must indemnify him, and therefore, in a sense, the first three parties, as between themselves, form a suretyship relation, in whidi the third party is principal, the second party the creditor, and the first party the promisor ; the undertaking of the prom- isor being that he will pay the second party if the third party does not respond to his implied liability. It may, therefore, be urged with some force that the promisee, the second party, relies upon two separate persons for his protection in this ar- rangement, who are concurrently liable to him ; and this readily gives rise to the suggestion tiiat the imdertakings of these two parties are collateral, and hence covered by the statute. Such was the reaaoning of Green vs. Cresswell, which overruled Thomas vs. Cook, but which was, in turn, repudiated by the later cases in England.'* §33. Same subject contiiiued. The doctrine of Green vs. Cresswell would be unassailable, if the major premise upon which the decision rests was sound, Tamely, that the promisor's undertaking is collateral to a oon- 88 Thomas vs. Ciook, 8 Bam & C. B. N. S. 344 (1862) ; Wildes vs. Cres. 728 (1828); overruled by Dudlow (1874) L. R. 19 Eq. 198; Green vs. Cresswell (1839) ; 10 Ad. overruling Green vs. Oesswell. i Ell. 453; Reader vs. Kingham, 13 THE STATTTTB OF FKADBS. i OV current liability of the third party to the promisee. If such is the relation of the parties, then it necessarily results,^ as a. fundamental proposition, that #6 promise is within the statute. The indemnitor, however, does not stand in such relation, since there is no obligation of the third party except as the result of a contract induced by the indemnitor's agreement. The implied liability of the third party to his principal had no independent existence at any nme, and only became a liability as the legal consequence of a suretyship entered into in reliance upon the indemnity contract. '■ . ; The statute only contemplates an obligation of the third party which exists independently of any contract between the first two. It does not follow from this that there must be an actual subsisting liability growing out of the principal contract before a collateral contract within the statute can be found, but the principal liability must either now exist, or oome into exist- ence in the future, as an independent compact^ and not arise as a mere legal incident of the alleged collateral undertaJdng. A promise by A to indemnify B if the latter will sell mer- chandise to C is within the statute, and is easily distinguish- able from a promise by Ato indeannify B if he will become Surety for C. In the first case, the liability of C to B arises from the contract of sale, and may exist independently of any other contract made by B, although induced by the promise of A. In the latter case, the liability of C to B arises merely as a legal consequence of a suretyship contract which B makes with the creditor of C, and although induced by the promises of A, as in the first case, yet it does not exist independently of the other contract made by B. It is not the use of the word indemnity which determines the question ; there are contracts of indemnity which are within the statute, and also those which are without the statute, depend- ing whether or not the undertaking is concurrfent with some other independent liability for the same debt to the same person. Such is the basis upon which the English cases now rest 40 THE LAW OF STJEETTSHIP. and it is believed upon which the conflicting American decisions are most nearly harmonized. §34. Same subject continued — American decisions. A large majority of the American courts now adopt the En- glish rule and hold that a promise of indemnity need not be in writing, even though a co-existing implied liability of anoth- er arises as a result of the transaction in indemnily.** There is really no distinction in principle between the cases in which the promise is to indemnify another upon his sole contract of suretyship, and those cases in which the promisor is also a Surety, but agrees to indemnify his co-surety. For instance, where there is a statutory requirement for two Sure- ties upon a bail bond or a bond of a public officer, one who is about to sign as Surety promises to indemnify another if he will join him as co-surety, in order to meet the requirements of the statute. There will arise at once by operation of law an implied co-existent liability on the part of the principal to save harmless both of the Sureties, and the promise by the indemni- tor is, in a sense, a promise to protect his co-surety, if the prin- cipal fails to meet such implied liability, but the situation in this respect is not different from that which arises where the indemnitor is not a co-surety. In both cases, the implied liability of the principal does not -39 Jones vs. Bacon, 145 N. Y. 446; (Ga.) 294; Anderson vs. Spence, 72 40 N. E. 216; Mills vs. Brown, 11 Ind. 315; Eoss vs. WoUenberg, 31 Iowa 314; Lueas vs. Chamberlain, Oreg. 269; 44 Pac. 382; Resseter vs. 8 B. Mon. (Ky.) 276; George vs. Waterman, 151 lU. 169; 37 N. E. Hoskins, 30 S. W. Rep. (Ky.) 406; 875. Minick vs. Huflf, 41 Neb. 516; 59 N. Contra — Draughan vs. Bunting, W. 795; Fidelity & Casualty Co. vs. 9 Ired. (N. C.) 10; Easter vs. Lawler, 64 Minn. 144; 66 N. W. White, 12 O. S. 219; Nugent vs. '143; Vogel vs. Melms, 31 Wis. 306; Wolfe, 111 Pa. St. 471; 4 Atl. 15; •Aldrich vs. Ames, 9 Gray 76 ; Cor- Bissig vs. Britton, 59 Mo. 204 ; May telyou vs. Eoagland, 40 N. J. Bq. 1 ; vs. Williams, 61 Miss. 125 ; Simp- Garner vs. Hudgins, 46 Mo. 399; son vs. Nance, 1 Spears (S. C.) 4; Demeritt vs. Biekford, 58 N. H. Hartley vs. Sandford, 66 N. J. L. 523; Jones vsl Shorter, 1 Kelley 627; 50 Atl. 454; 55 L. R. A. 206. THK STATUTE OF FRAUDS. 41 lexist as an independent undertaking but is merely a legal consequence o£ another contract. It is sometimes urged that a promise of indemnity to a co- surety need not be in writing because it is a promise to indem- nify against the promisor's own default, and, therefore, bind- ing, irrespective of the surety^ip feature with which it is associated.*" While this may furnish an additional reason why the promise is not within the statute, it falls short as a dis- tinguishing reason with which to harmonize the conflicting deci- sions. If the argument is sound which supports the view that a promise by a stranger to the debt to indemnify a Surety is within the statute, then it also brings within the statute tlie promise to indemnify a co-surety for the promisor in the latter case, in any event, undertakes to indemnify against his own default only to the extent of his contributory share of the liar iility, but as to the co-sureties' contributory share, the relation of the parties is exactly parallel with the position of the partiea where the indemnitor is a stranger to the principal contract. §35. All contracts of suretyship are within the statute of frauds; There are no exceptions under the Statute of Frauds. A considerable number of undertakings have been held not to be within the Statute which have points of resemblance to the contract contemplated by the statute. These analogous trans- actions include those which, although resulting incidentally in the promises to pay another's debt, yet are based upon some *o"A promise by a stranger to ently of the promisej any engage- the debt, to indemnify a Surety, is ment which he may make, that it prima facie within the statute, be- shall be paid, or that the Surety cause the principal is bound by an shall not be compelled to pay it, implied obligation to do what the will be regarded as contracted on promisor agrees to do expressly, his own behalf, and not for the debt and the promise is, therefore, really or default of another in the sense to answer for the default of the in which the term is used in the principal. When, however, the statute." 1 Smith's Leading Cases, promisor is directly or indirectly 8 Am. Ed. 538. answerable for the debt independ- Ferrell vs. Haxwell, 28 O. S. 383. 42 THE LAW OF SUEETYSHIP. special benefit to the promisor, or result in a cancellation or ex- tinguishment of the principal's debt, or arise out of a joint liability in which credit is given to both principal and promisor, or where sales are made wholly' on the credit of the promisor. These and other contracts of similar character, to be hereafter noticed, fall entirely outside the purpose of the Statute and are not properly classed as exceptions to the rule established by the Statute. , But every collateral undertaking to pay a co-existing debt of another person is within the express provision of the Statute, and must be in writing, whether such undertaking is in the form of the contract of a Surety, Guarantor or Indorser, and the fact that the liability of the promisor is co-extensive with the principal, and " original " in the sense tbat he is bound from the beginning, such as a Surety upon a note, does not take the transaction out of the Statute. .§36. Credit given wholly to promisor. If A requests another to ship goods to B or perform service for B and charge to himself, and if the goods are shipped or the service performed upon the credit of A, it is not a suretyship contract and need not be in writing, because the necessary ele- ment of a co-existing liability of another being wanting there is no suretyship relation.*^ The fact as to whom the credit was given which controls this class of cases is often difficult to determine. The expressions used by the parties, or the circum- stances under which the promise was made, may doubtless always be resorted to.*^ If the vendor makes a charge in his books against the third party he will generally bp estopped from claiming a sale on *iLoomis vs. Newhall, 15 Pick. Commercial Co. vs. Midland Coal 159; Ueberroth vs. Riegel, 71 Pa. Co., 41 Mont. 211; 108 P. 655; Har- St. 280; Simpson vs. Pesnton, 2 rison vs. Birrell, 58 Ore. 410; 115 ,Cromp. & Mees. 430; Gleason vs. P. 141; Atlas Lumber Co. vs. Flint, Briggs, 28 Vt. 135; Faires vs. Lo- 20 S. D. 118; 104 jST. W. 1046;' danc, 10 Ala. 50j Bugbee vs. Ken- Eubey Trust Co. vs. Weidner, 174 dricken, 130 Mass. 437; Phelps vs. Mo. App. 692; 161 S. W. 333;'Fitz- Sione, 172 Mass. 355; 52 N. E. 517; gerald Si^ear Co. vs. Kelly, 81 N. J Gallagher vs. McBride, 66 N. J. L. L. 6 ; 83 Atl. 491. ,360; 49 Atl. 582; Lusk vs. Throop. *2Dean vs. Tallman, 105 Mass. 189 111. 127; 59 N. E. 529; Smith 443; Cowdin vs. Gottgetreu, 55 N. vs. Miller, 152 Ala. 485; 44 So. Y. 650; Keate vs. Temple, 1 B. & P. 399; Cauthron Lumber Co. vs. Hall, 158. 76 Ark. 1; 88 S. W. 594; McGowan THE STATUTii OF FEAUDS. 43 the credit of the promisor.*' Even a presentation of the bill to the third party, although charged on the books to the promisor has been held to establish a collateral promise within the stat- ute.** But a charge upon the books to the promisor and the presentation of the bill to him, the property being delivered to the third party, is not of itself conclusive evidence of an inde^ pendent credit to the promisor,*" although such charges in the books would be strong presumptive evidence that the goods were sold wholly on the credit of the promisor.*' §37. Joint liability of promisor and another. If a promisor has put himself in the position of an original purchaser by becoming jointly liable with the principal debtor to whom the goods were delivered, it is the undoubted policy of the statute not to require siuch contract to be in writing, although the promisor's liability thereby becomes co-existing and co-extensive with that of the principal. It is not Jiecessary in order to make two persons original promisors that they shall be under equal obligations to pay the debt as between themselves. One may be an accommoda- tion party as to the other and yet be an original debtor as to the creditor. A sale for the benefit of one on the joint credit of two is an original undertaking of both debtors even though the vendor fully understands that as between the debtors themselves, one isMataon vs. Wharam, 2 T. H. Ind. 595; Larson vs. Jensen, 53 80. In this case, the form of the Mich. 427; 19 N. W. 130; Cameron promise was "I will see you paid." vs. Haas Bros. Packing Co., 3 Ala. Such form would generally import App. 520; Repair vs. Krebs Lumber an original liability. Yet even this Co., 80 S. E. 140. presumption was held to be over- ** Larson vs. Wyman, 14 Wend, come by the entry in the books (N. Y.) 246. against the .third party. Contra — ^Hermans vs. Lambard, Anderson vs. Hayman, 1 H. Bl. 21 Me. 308. 120; Hardman vs. Bradley, 85 111. *= Walker vs. Richards, 41 N. H. 162; Webb vs. Hawkins Lumber 388; Noyes vs. Humphreys, 11 Co., 101 Ala. 630; 14 South 407; Gratt. (Va.) 636; McGowan ICom- Langdon vs. Richardson, 58 Iowa mereial Co. vs. Midland Coal Co., 610: 12 N. W. 622; State Bank of 41 Mont. 211; 108 P. 655; Shay vs. Pike va. People's Nat. Bank, 118 Cnixton, 116 N. Y. Supp. 1123; 57 N. Y. Supp. 641. So. 388. Contra — Lance vs. Pearce, 101 *» Ruggles vs. Gatton, 50 111. 412. 44 THE I-AW OP STTEETTSHIP. is acting merely to secure credit for the other, all such cases, the authorities are uniform.*^ In referenoe to §38. Discharge of original debtor. A contract by the promisor to pay the debt of another on the condition that the creditor cancel or extinguish the claim against the principal debtor, is not within the statute and need not be in writing. This rests upon the same reason as the casG« in which credit is wholly given to the promisor, namely, that the fundamental co-existing liability of another is wanting, without which suretyship does not arise. If A says to the creditor, " I will pay to you in 30 days B's del'»t now due, providing you will now execute to him a receipt in full," it raises an original and absolute liability, ihere bebg no subsisting principal liability to which it can be wllaterai.** *T Gibbs m. Blanchard, 15 Mich. 492, Christ ianey, J.: "The statute only applie>v to such promises made in behalf, ov for the benefit of an- other, as wodld, if valid, create a. distinct and several liability of the party thus promising, and not a joint liability -with the party in whose behalf it is made .... If the promise or the obligation of the two be joint, as between them, on the one side and the promisee on the other, then neither is collateral to the other, and such joint promise is original as to both." Ex Parte Lane, 1 De Gex 300 Wainwright vs. Straw, 15 Vt. 215 Eddy vs. Davidson, 42 Vt. 56 Stone vs. Walker, 13 Gray 613 Hetfleld vs. Dow, 27 N. J. L. 440 Sottman vs. Fix, 25 Mo. App. 671 Boyce vs. Murphy, 91 Ind. 1. ^■Iiakeman vs. Mountstephen, 7 Eng. Ir. App. 17, Selboume, J.s " There can be no suretyship unless there be a principal debtor, who of course may be constituted in the course of the transaction by mat- ters Eai Post Facto, and need not be so at the time, but until there is a principal debtor there can be no suretyship. Nor can a man guarantee anybody else's debt un- less tnere is a debt of some other person to be guaranteed." In thia case a contractor was asked to per- form work for a public board. Pay- ment for this work could be made by public taxation if the board, by resolution, should authorize the work. No such resolution was passed, but the promisor, anticipat- ing such action, verbally agreed to become responsible for the work. The service being performed, the board declined to pay for it or to pass the necessary resolution pro- viding for payment. The case rests upon the point that there never waa any principal liability to which the promise was collateral. Goodman vs. Chase, 1 Bam. ft THE STATUTE OF FEAtTDS. 45 This rule will not be applied unless there is an absolute dis- charge of the original debtor. Where one promises to pay if the creditor will allow the principal debtor to remove his property from the state, while the effect of this may be to deprive the creditor of all means of collecting from the debtor, yet the lia- bility still subsists and the promise is within the statute.** So a promise to pay in consideration of a forbearance to sue the debtor, or a dismissal of a pending suit, excludes a novation since the debtor remains liable.'" §39. Consideration beneficial to promisor. Co-existing liability of another is not alway^ a test of suretyship. While every contract of suretyship within the statute requires a co-existing liability of another to which the promisor's liabil- ity is collateral, if the object of the promisor's contract ib to subserve some pecuniary purpose of his own, even though the obligation of another still subsists, and the performance of the promisor's engagement will finally extinguish the debt of the other, this is not a suretyship contract within the mean- ing of the statute and need not be in writing."^ To hold other- wise, would be to interpret the statute as a shield and cover for fraud, and to effectuate rather than to prevent a wrong. Aid. 297; Butcher vs. Stuart, 11 M. 1886; Mallory vs. Gillett, 21 N. Y. & W. 857; Langdon vs. Hughes, 107 412; Ames vs. Foster, 106 Mass. Mass. 272; Harris vs. Young, 40 Ga. 400; Prime vs. Koehler, 77 N. Y. 65; Meriden Britannia Co. vs. 91; Davis vs. Patrick, 141 U. S. Zingsen, 48 N. Y. 247; Mulcrone vs. 479; 12 S. Ct. 58; Raabe vs. Squier, American Lumber Co., 55 Mich. 622; 148 N. Y. 81; 42 N. E. 516; Emer- 22 N. W. 67; Day vs. Cloe, 67 Ky. son vs. Slater, 22 How. (U. S.) 28; (4 Bush) 563; Green vs. Solomon, Rhodes vs. Matthews, 67 Ind. 131- 80 Mich. 234; 45 N. W. 87 ; Whitte- McCreary vs. Van Hook, 35 Tex', more vs. Wentworth, 76 Me. 20; 631; Greene vs. Burton, 59 Vt. 423; Watson vs. Jacobs, 29 Vt. 169; 10 Atl. S7S; Muller vs. Riviere 50 Packer vs. Benton, 35 Conn. 343; Tex. 640; Patton vs. Mills, 21 Kas Smith Bros. vs. Miller, 152 Ala." 485; 163; Wills vs. Cutler, 61 N. H. 405: 44 S. 399; Daniel Co. vs. Dickey, Walnut Co. vs. Courtney, 96 Ark 6 So. App. 548; 65 S. E. 301; Ellis 46; 130 S. W. 566; Johnson vs. vs. Felt, 206 Mass. 472; 92 N. E. Stapleton Co., 132 Ga. 164; 63 S. 702; Sheppard vs. Newton, 139 N. E. 827; Blakeney vs. Nalle & Co C. 533; 52 S. E. 143; Palmetto 45 Tex. Civ. App. 635; 101 S. W. Mfg. Co. vs. Parker & Anderson, 123 875; Howell vs. Harvey 65 W Va Ga. 798; 51 S. E. 714. 310; 64 S. E. 249; Mankin vs! «Murto vs. McKnight, 28 111. Jones, 68 W. Va. 422; 69 S. E. 981; App. 238. Rice vs. Hardwick, 124 Pac. 800; .50 Ellison vs. Wisehart, 29 Ind. Munroe vs. Mundy & Scott 146 N 32; Duffy vs. Wunsch, 42 N. Y. W. 819; Goodling vs. Simon, 54 Pa." 243. Sup. Ct. 125; Davies va. Carey, 72 51 Harrison vs. Sawtel, 10 Johns. Wash. 537; Frohardt Bros va Duff 242; Garner vs. Hudgins, 46 Mo. 135 N. W. 609; 156 la. 144." ' 399; Williams vs. Leper, 3 Burrows 46 THE LAW OF SUEBTYSHIP. The statute only applies where the debt of one party is sought to be charged upon another, and it is obvious that a verbal promise to pay for some benefit accruing to the promisor, is none the less lawful because of some inoidenta/ benefit to an- other. A distinction must be made, however, between a beneficial consideration, which is a mere inducement to enter into the suretyship contract^ and a beneficial participation in the main contract It is the latter only which takes the case out of the statute. The promisor may receive a money consideration for his promise, or may be induced to make the contract for other valuaj^le considerations beneficial to him, yet it will, be void if not in writing, but if the performance of the main contract, to which his suretyship is collateral is a benefit to him, a verbal promise in guaranty is sufiicient. The same difference exists in principle between these two phases of guaranty as that which constitutes the difference be- tween the ordinary contract of one to pay his own debt and the collateral contract of suretyship. The contract of one to pay his own debt for goods purchased by himself does not re- quire a written memorandum to prevent fraud. Sufficient pre tection against perjury is afforded by the fact that the com- mon law requires proof of the consideration to establish the contract, and the consideration being shown the liability will be implied, and this applies with equal force where one is a beneficiary of the main contract, although incidentally in the situation of a promisor in suretyship. • But there is an omguarded opening for fraud where the consideration moving from the creditor does not extend to the promisor. No liabilily follows against the promisor in such a case by the mere prOof of the consideration, but it rests upon proof of the promise itself, and the Statute of Frauds was intended to safeguard this promise from uncertainty. §40. Promise to pay debt of another out of property of debtor in promisor's hands. If a debtor has placed property of his own in the possession of the promisor for the express purpose of having it applied to THE STATUTE OF FEATJDS.' 47 Ms debt, a promise by the bailee to so apply it is merely in fur- therance of his trust and the Statute of Frauds has no applica- tion. The Statute can not be pleaded to justify a breach of trast"^ Other situations will, however, frequently arise which can not be disposed of on the basis of the administration of a trust. (1) Where property has been transferred absolutely to the promisor and in consideration of which he agrees with the debtor to pay his debts and thereafter verbally agrees with the creditor to pay. (2) Where the promisor has possession of property of the debtor but without any contract in reference to its application, thereafter verbally agrees with the creditor to pay the debt out of this property. The first undertaking being an absolute obligation to the debtor to pay in consideration of the transfer, the promise to the creditor will be binding though verbal."^ The statute cannot be pleaded to prevent the 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 hiinself verbally to pay the debt of the prin- cipal, 0. S. 50; 93 N. E. 465, it was held that "an unlimited guaranty in, the atiaence of words showing that it was intended to be comtrnu- ing is equivocal, and the surround- ing circumstances may be proven, not to contradict or vary the terms of the writing but to enable the court to put itself in the place of the parties the better to understand the terms employed in the writing and to arrive at the mutual inten- tion of the parties." Contra — ^Ins. Co. vs. Doll, 35 Md. 80; Davis vs. Shafer, 50 Fed. Rep. 764; Railroad Co. vs. Trimble, 10 WalL 367; Michael vs. St. L. M. F. Ins. Co., 17 Mo. App. 23; Chrisman vs. Hodges, 75 Mo. 413; Miller vs. Dunlap, 22i Mo. App. 97; St. Paul & Dulutlh R. Co. vs. Blackmar, 44 Minn. 514; 47 N. W. 172; Wads^ worth vs. Smith, 43 Iowa 439. Holding that where the language of a written instrument is free from ambiguity a special construction placed upon it by the party who drew it is inadmissible. 5 Taylor VB. Smith, 116 N. C. 531; 21 S. E. 202. The contract in this case was between sisters and made provision for ownership of property in the survivor if one should die without a "living heir." The con- text makes it manifest that the words "living heir" were intended to mean "living issue," as neitiher could die without a "living heir," aa the surviving sister would be sudh heir. See also Mills Oarleton 'Co. vs. Huberty, 84 O. S. 81 ; 95 N. E. 383. sMallan vs. May, li3 M. & W. 511; Kirby vs. W. St. L. & P. Ry. Co., 109 111. 412; Stanley vs. West- ern Ins. Co., L. R., 3 Ex. 71 ; Metro- politan Exhibition Co. vs. Ewing, 12 Fed. Rep. 196. COMMERCIAL GUARANTIES. 59 interpretation is shown to have been fully concurred in by both parties. A different rule applies where only one party acts upon some special interpretation and the other acts upon a different con- struction, or where the language employed is ambiguous. While the great object in the construction of all contracts is to effectuate the in-tention of the parties, yet the intention of one party cannot be set up against the intention of the other.'" In such eases, the generally accepted meaning of the words used must prevail, even though in an extreme case such eonstructidii might be contrary to the intention of both parties. |50. Construction of equivocal or ambiguous words. If the language of the guaranty is susceptible of two mean- ings, the same rules of construction should be applied as in any other form of contract. (a) Ascertain, if possible, the sense in which the pajiiies themselves mutually understood the words, giving effect to such ascertained meaning. (b) If a mutual understanding of the parties cannot be es- tablished by reference to the context, the declarations and con- duct of the parties or the surrounding circumstances, the con- struction placed upon the contract by the promisee and upon which he acted should prevail without regard to the understand- ing of the promisor, providing such construction by the promisee was reasonable.' The very just and salutary maxim of Suretyship that the promisor is a favorite with the law has perhaps been extended in its applications beyond the demands of either equity or justice. It is highly proper that the promisor be pennitted to stand upon the exact letter of his bond, in the sense that no conditions or obligations may be imposed by implication, and that no construction should be made which will hold him liable beyond the express terms of his engagement. To this extent he is often properly favored.'" Where the intent of the parties is clearly "" Mamerow vs. National Lead terms of his guaranty, nothing more Co., 206 111. 626; 89 N. E. 424; is intended than that he is not to Newoomh vs. Kloelblen, 77 N. J. L. be held liable for anything that is 791; 74 Atl. 511; Mudge vs. Vamer, not within the express terms o* the 146 N. C. 147 ; 50- S. E. 540. instrument in which his guaranty is ' Ante Sec. 18. contained : that his liability is not '» London and S. F. Bank vs. Par- to be extended by implication be- rott, 125 Oal. 472; 58 Pac. 462. yond these limits, or to other sub- "When it is said that a guarantor jects, than those expressed in the ds entitled to stand upon the strict instrument of guaranty. But for 60 THE LAW OP SURETYSHIP. expressed in the instrument, or has been fully ascertained from the surrounding circumstances, the rule of strict construc- tion applies, and the Guarantor may stand upon the precise terms of his contract. In this the authorities are all agreed.' Beyond this there appears to be no equity in favoring the promisor in Suretyship. It may well be doubted whether a Slirety or Guarantor should be permitted to claim the protection of his so called "equity" to prevent a disclosure of the con- tract which he really intended to make, merely because the language he happened to employ was not the most appropriate to express his real intent, or whether, having used words sus- ceptible of a double meaning he may claim the same protection against one who in good faith acted upon a construction differ- ent from the one intended by the promisor. ° the purpose of ascertaining tlie mean- ing of the language which he has used, and thus determining the ex- tent of his guaranty, the same rules of construction arc to be applied as are applied in the construction of other written instruments. His lia- bility is not to be extended by im- plication beyond the terms of his guaranty as thus ascertained." See also Stewart vs. Knight & Jillson Co., 166 Ind. 498; 76 N. E. 493. s Miller vs. Stewart, 9 Wheat. 680; Smith vs. Montgomery, 3 Tex. im; Dustin vs. Hodgen, 47 111. 125; Marliland vs. Kimmel, 87 Ind. 560; Staver vs. Locke, 22 Ore. 519; 30 Pac. 497; State vs. Medary, 17 O. 554; Kepley vs. 'Carter, 49 Kan. 72; 30 Pac. 18'2; Columlbus Sewer Pipe Co. vs. Ganser, 58 Mich. 385; 2S N. W. 377; Gushing vs. Cable, 48 Minn. 3; 50 N. W. 861; Crone Co. vs. Specht, 39 Neb. 123; 57 N. W. 1015; Guardian Trust Co. vs. Peabody, 107 N. Y. S. 51'5- Cieorfce D. Witt Shoe Co. vs. Peacock, 1.50 •N. C. 545; 64 S. E. 210: Manhat- tan Rolling Mill vs. Dellon, 113 N. Y. S. 571. See also Hill Mercantile Oo. vs. Botan Grocerv 'Co., 127 S. W. 1080: Third Nat. Bank vs. Laid- law, 86 0. S. 91 : 9S N. E. 1015. " Vhf mischief resulting from a sustained effort to do "eauitv" in accordance with fixed rules is illus- tratpd in Birdsall vs. Heacoek 32 O. S. 177. Here the language of the guaranty was "Please send my eon the lumber he asks for and it will be all right." The son was about to engage in the lumber business and was seeking, by this arrangement between his father and the creditor, to establish a credit which would enable him to buy from time to time as his needs should require. This was known to both creditor and Guarantor and from all the cir- cumstances was the undoubted sense in w'hioh the words of the Guaranty are used, and for the purposes of the decision it anpears to be con- ceded that the Guarantor if asked would admit that he intended to guarantee such purchases as his son should make from time to time in the regular course of his business, and that the creditor acted upon such construction. The principal presented his letter and purchased a small amount of lumber and continued to purchase other and larger amounts from time to time, and the holding is that the Guarantor is liable only for the small amount the principal hap" pened to call for when he presented his letter. The conclusion of the Court is that "such an instrument should be confined to the immediate transac- tion, unless the langudge of the promise is sufficiently broad to show that it was meant to reach beyond the present, and render the guaran- tor answerable for future credits." Such holding is consistent with. COMMEBCIAL GUAKANTIES. 61 " Thjeare is a sense, undoubtedly, in which it may be said that these obligations are to be strictly construed; and it is this: That the Surety is not to be held beyond the very precise stipulations of his contract He is not liable on an implied engagement where a party contracting for his own interests might be, and he has a right to insist upon the exact perform- ance of any condition for which he has stipulated, whether oth- ers would consider it material or not But where the question is as to the meaning of the written language in which he has contracted, there is no difference, and there ought not to be any, between the contract of a surety and that of any other party." " and strictly in line with the dictum of Chief Justice Marshall who held it to be the duty of the vendor not to part with his goods upon the credit of one not the vendee, with- out ascertaining the exact meaning and extent of the contract which the Guarantor malces (Russell vs. Clark, 7 Cranch 90) and this is also in line with other cases adopting the Marshall theory. Ante Sec. 18, and cases there cited. i» Gates vs. McKee, IS N. Y. 237. The view that letters of guaranty where the language is amibiguous will be taken most strongly against the Guarantor has received a wide application both in this country and in England. Haight vs. BrooEs, 10 Ad. & EU. 309; Mayer vs. Isaac, 6 Mees. & Wels. 605; Martin vs. Wright, 6 Ad. & Ell. N. S. 917; Bastow vs. Bennett, 3 Camp. 220; Bainbridge TS. Wade, 16 Ad. & Ell. N. S. 89; Drummond vs. Prestman, 12 Wheat. 515; Hoey vs. -Jarman, 39 N. J. Law 023. " There is no rule exclusively ap- plicable to instruments of surety- ship and requiring them to be in all cases interpreted with stringency and critical acumen in favor of the Surety and against the creditor, and all ambiguities to be resolved to the advantage of the Promisor, and ev- ery liability excluded frori the op- eration of the instrument that can by a restrained and refined construc- tion be deemed outside the agree- ment. In guaranties, letters of credit, and other obligations of Sureties, the terms used and the language employed are to have a reasonable interpretation, according to the intent of the parties as dis- closed by the instrument, read in the light of surrounding circum- stances and the purpose for which it was made. If the terms are am- biguous the ambiguity may be ex- plained by reference to the drcum- ■tances surrounding the parties, and by such aids as are allowable in other cases; and if an ambiguity still remains, I know of no reason why the same rule which holds in regard to other instruments should not apply ; and if the Surety has left anything ambiguous in his expres- sions, the ambiguity must be taken most strongly against him. This certainly should be the rule to the extent that the creditor has in good. 62 THE TA.W OF SUEETYSHIP. There is, however, no apparent necessity for conatruing an ambiguous contract of Guaranty most strongly against the Guar- antor even in oases -where the real intent of the parties has not been asoertained. To extend to the promisee the privilege of giving to the words any construction he sees fit, is no bettei equity than to construe doubtful -words most strongly in favor of the Guarantor. The construction, in auy event, should be reasonable, and if the promisee acts upon an unreasonable and extreme interpreta- tion, the requirements of justice and equity are fully satisfied by limiting his recovery to such an amount as is ascertained to be reasonable under all the circumstances. Such appears to be the result of the weight of authority.^^ faith acted upon and given credit to the supposed intent of the Sure- ty." Beloni vs. Freeborn, 63 N. Y. 387, Allen, J.; Bridgeport Mal- leable Iron Oo. VB. Iowa Cutlery Works, 130 Iowa 736; 107 N. W. 937; ITurley vs. Fidelity & Deposit Co., 93 Mo' App. 88; 68 Mo. Aipp. 958; A. B. Small 'Co. vs. Claxton, 1 Ga. App: 83; 57 S. E. 977; Lamm & Co. vs. Oolcord, 22 Okl. 403; 98 P. 35.5; Lean vs. Geagan, 128 Pac. 792; 20 Cal. App. 260; Bradshaw vs. Barber, 125 Minn. 479. The much quoted words of Judge Story have materially influenced the law of the su'bjeet, wherein he states; "If the lanj^age used be ambiguous and admits of t-wo fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most fa- vorable to his rights, that interpre- tation will prevail in his favor; for it does not lie in the mouth of the Guarantor to say that he may, with- out peril, scatter ambiguous words, by which the other party is misled to his injury." Lawrence vs. Mc- Oalmont, 2 How. 450. In Bright vs. MeEnight, 1 Sneed (Tcnn.) 168, an additional reason in support of this view is urged to the effect that it is always within the power of Guarantors to limit their obligation by appropriate words requiring notice to them of each advancement, or any other con- dition they think proper for their own protection and safety. See Ante Sec. 18, and cases there cited. 11 Smith vs. Molleson, 148 N. Y. 241 ; 42 N. E. 660 ; Bennett vs. Dra- per, 139 N. Y. 266; 34 N. E. 791; Davis vs. Wells, ]104 U. S. 159; Wills vs. Ross, 77 Ind. 1 ; Hall vs. Rand, 8 Conn. 560; White vs. Reed, 15 Conn. 457 ; London Bank vs. Par- rot, 58 Pac. Rep. (Cal.) 164; Peoria Savings Co. vs. Elder, 165 111. 55; 45 N. E. 1083; Shickle Iron Co. vs. Water Works Co., 8i3 Iowa 396; 49 N. W. 98.7; Lowe vs. Beckwith, 14 B. Mon. (Ky.) 184; Musscy vs. Rayner, 22 Pick. 228 ; Mathews vs. Phelps, 61 Mich. 327; 28 N. W. 108; Shines vs. Central Savings Bank, 70 Mo. 524; Simons vs. Steel, 36 Jf. n. 73; Gardner vs. Watson, 76 Tex. 25; 13 S. W. 39; Noves vs. Nichols, 28 Vt. 159; Moore vs'. Holt 10 firatt. (Va.) 284; Hooper vs. Hooper, 8il Md. 155; 31 Atl. 508; London and S. F. Bank vs. Parrott, 125 Cal. 472;. 58 Pac. 1«4; National Bank of Commerce vs. Gam, 23 0. C. C. 447. Post See. 59. COMMEBCIAL GUAEANTIES. 63 §51 (leneral guaranty. An instrument of guaranty addressed to all persona, or to any one whom it may concern, may be enforced by any one to whom it is presented who acts upon it. The law creates a privity of contract between the Promisor and the one who maies advances upon the faith of such a promise. Such an instrument is by the custom of mercantile transactions drawn for the express purpose of being shown to others as an instru- ment for them to make advances upon, .and after this purpose has been accomplished it would be giving legal countenance to the perpetration of a fraud to withhold a remedy against the promisor.^" A general guaranty is assignable and may be enforced by the assignee who makes advances relying upon it or the assignee may recover on the guaranty for past advances if the cause of action on such advances be also assigned to him,^^ and in case of a general guaranty of negotiable paper a transfer of the pa- per carries with it the benefit of the guaranty without any spe- cial assignment of the gnaranty.^* A guaranly of a. non- negotiable instrument has been held to pass to the assignee, although the guaranty was not in terms transferred.^*" It is held, a general guaranty of negotiable paper will not, however, be equivalent to an indorsement ; while it will be avail- able in favor of any subsequent indorsee of the paper, yet the lal.mvry vs. Adams, 22 Vt. 160; " Oommercial Bank vs. Provident Griffin vs. Rembert, 2 Rich. N. S. Inst., 59 Kan. 361; SS Pac. 161; (S. C.) 410; Manning vs. Mills, 12 State Nat. Bank vs. Hiaylen, 14 Neb Up. Can. (Q. B.) 515; Van Wart 480; 16 N. W. 7'64; Leumon, vs. vs. Carpenter, 21 Up. Can. (Q. B.) Strong, 55 Oonn. 448; 22 Atl. 293; 320; Wheeler vs. Maj'field, 31 Tex. Gould vs. Ellery, 3i9 Barb. 163; 395; Ixmsdale vs. Lafayette Bank, Stillman vs. Northup, 109 N. Y. 18 0. 126; Birckhead vs. Brown, 5 473; 17 N. E. 379; 'Carpenter vs. Hill fX. y.) 635; Union Bank vs. Longan, 16 WalL 271; Ellsworth Coster, 3 N. y. 203; Tidioute Sav. vs. Harmon, 101 III. 274; Tidioute Bank vs. Libbey, 101 Wis. 103 ; 77 Eav. Bank vs. Libbey, 101 Wis 193 ■ ^- W. 182. 77 N. W. 1.82; Codman vs. Vt! & C isEverson vs. Gere, 122 N. Y. R. Co., 16 Blatchf. 166; Partridge 290; 25 N. E. 4912; Qaflin vs. Os- vs. Davis, 20 Vt. 499; Louisville trom, i54 N. y. 581; Lane vs. Du- N. A. & C. R. Co. vs. Louisvi'le Tnist chac, 73 Wis. ©55; 41 N. W. 962; Co., 174 U. S. 353. But see'Edgerly vs. Lawson, 176 Mass. 551- 57 N E. 102O. Stearns vs. Bates, 46 Conn. 306; Harbord vs. Cooper, 43 Minn. 466; 45 K. W. 8i60; First National Bank i*" Bassett vs. Perkins 119 N" Y vs. Taylor, 114 Pac. 52i9; 38 Utah S. 3.54; Rogers vs. Harvey I413 kv 516. 88, 136 S. W. 128. 64 THE LAW OF SUEETYSHIP. Guarantor as against an indorsee of the paper after maturity has the same defenses as the maker against <)riginal payee.^* §52. Special gnaianty. A Guaranty is special when it is addressed to a particular person, firm or corporation, and when so addressed only tbe promisee named in the 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 mistate 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 show that it was intended for him though by mistake addressed to another.^^ A special guaranty implies a trust and confidence in a partic- ular person and such guaranty is not assignable imtil 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 makes 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 be acted upon by one of the two named/' and for the same IB Trust Co. vs. National Bank, i? Grant vs. Naylop, 4 Oranch 101 U. S. 66; Tuttle vs. Bartholo- 224; Taylor vs. MoCltmg's Ex., 2 mew, 12 Met. 452; Walton vs. Mas- Hoiist. (Del.) 24. call, 13 M. & W. 452. is Eobbins vs. Bingham, 4 Johns. Cora*ra— Nat. Ex. Bank vs. McEl- 476 ; Evansville Nat. Bank v». Kauf- fresh, 37 S. E. Eep. (W. Va.) 541. mann, 93 N. Y. 273. 18 Taylor vs. Wetrnwre, 10 0. 4fl'l ; But see Levy vs. Oohen, 92 N. Y. Evansville Nat. Bank vs. Kaufmann, S. 1024, where it was held that a '913 N. Y. 273; Johnson vs. Brown, contract by M. to build a syna- 51 Ga. 498; Nat. Bank of Peoria gogue being assignable, a guaranty vs. Disfendorf, 90 111. 396 ; Mitchell to pay him for the work is a general vs. Eailton, 45 Mo. App. 273 ; Dry and not a special guaranty, so that vs. Davy, 10 Ad. & Ell. 30; Strange M. may assign it with the contract, vs. Lee, 3 East. 484; Wrigiht vs. and the guarantors be liable to the Russell, 2 W. Bl. 934; Bamett vs. assignee. Smith, 17 111. 365; Barker vs. Park- is Smith vs. Montgomery, 3 Tex. er, 1 Durn. & E. 287 ; Lamm & Co. 199 ; Penoyer vs. Watsron, m Johns, vs. Oolcord, 22 Okla. 493; 98 Pa«. 100; Fried'lander vs. New Yo-k Plate 355. Glass Insurance Co., 56 N. Y. S. COMMEECIAIi GUAEANTIES. 65 reasons a guaranty 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 vdlling to assume obligations for others. The question here involved 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 guarantor is discharged from liability for the partner- ship advances.^" §54. Guarantor for joint principals not held for one. A guarantor of a joint enterprise may stand strictly upon his contract and vdll not be liable except for advancements made to the principals jointly, who are named in the instrum.ent. A change in a partnership by the death or retirement of one 583. Defendant guaranteed payment Contra — American Credit Indem- of bills for glass that slhould be nity Co. vs. Oassard, 83 Md. 272; bought by one E. from the part- 34 Atl. 703. nership F. & G. On dissolution of 20 Parham Sew. Mach. Co. vs. the partnership of F. & G. the con- Brock, 113 Mass. 194; Bell vs. Nor- tract of guaranty was assigned to wood, 7 La. 96; Conn. Mutual Life' F., one of the partners. F. sold E. Ins. Oo. vs. Scott, 81 Ky. 540; White glass for which E. never paid. In Sew. Mach. Co. vs. Hin«s, 61 Mieh. a suit against the defendant guar- 423; 28 N. W. 157; Montefiore vs. antor by F., it was held that dis- Lloyd, 15 J. Scott (N. S.) 208; Lon- solution of the firm discharged the don Assurance Co. vs. Bold, 6 Ad. & defendant from all further liability Ell. (N. S.) 514; Lyon vs. Plum, under the guaranty. See also Schoon- 75 N. J. L. 882; 69 Atl. 209; Coan over vs. O*ome, 108 Iowa, 453; vs. Patridge, 98 N. Y. S. 570. 79 N. W. 263. In Walslh vs. Bailie, In Palmer vs. Bagg, 56 N. Y. 10 Johns. 180, the guaranty was 523, the principal after the execu- addressed to A. who did not, how- tion of the contract of guaranty ever, make the advancements, but associated with himself a partner directed the customer to B., himself with the knowledge of the creditor, guaranteeing payment to B. Held Advances were thereafter made to that A. could not recover from the the principal in his individual name Guarantor. and charged to him as sole principal 66 THE LAW OF SUKETYSHIP. ''■'■■ . . ' partner will discharge the guarantor of such firm from all fur- therliabilityi" The Guarantor will be discharged even though the creditor made the advances without knowledge of the change in the firm.^" 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 estoppel 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 the other or both, but an undertaking of guaranty will not be construed to have a retroactive effect unless it appears by express words or by nec- essary implication to have clearly been the intention of the parties to embrace' past transactions. It is no defense to a Guarantor whose contract includes post transactions that he had no knowledge of the existence of any past indebt^ness or that he had been misled by the representa- tions of the 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 general import vsdll not be 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.^* on the booka oi tKe creditor. Al- "s People vs. Lee, 104 K Y. 44fl: though delivered at the' place of bus- 10 N. E. 84; Harwood vs. Kiersted, Iness of the firm they were not so 20 111. 367. See also Barnea vs. delivered on the credit of the firm. Gushing, 1&8 N. Y. 542. Held that the Guarantor was liable. 2* Morrel vs. Cowan, L. R. 7 Ch. 2iCremer vs. Higginson, 1 Mason Div. 151; Weed et al. vs. Chambers, 323; Holland vs. Teed, 7 Hare 50; 40 Up. Ckn. (Q. B.) 1; Weir Plow iCofigrove Brewing & Malting Co. vs. Co. vs. Wahnsley, 110 Ind. 242; 11 Starrs, 5 Ont. 189; Simson vs. N. E. 232; Manhattan Rolling Mill Cooke, 8 Moore 588; Hawkins vs. vs. Delon, 113 N. Y. S. 571; Na- New Orleans Print. & Pub. Co., 29 tional Bank of Commerce vs. Rocke- Ija. An. 134. feller, 174 F. 22; 98 C. C. A. 8. 22 Byers vs. Hickman Grain Co., In Brooks vs. Baker, 9 Daly (N. 84 N. W. Rep. (Iowa) 500. Y. C. P.) 398, the guaranty was The same principle is involved in upon a lease and the language emr Manhattan Gas Light Co. vs. Ely, ployed was "should any default be 39' Barb. 174. miade in the payment of said rent" COMMEBCIAL GUAEANTIES. 67 §58. Guaranty without knowledge of principal debtor. No privity of contract is necessary between the principal and the guarantor. A contract of guaranty made with the creditor without the knowledge of tbe principal will bind, the guarantor.^" General contracts of indemnity to merchants against loss from the insolvency of customers, called Guaranty Insurance, are usually without the 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 guaranty 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.^* A past transaction or executed consideration will not support a contract of guaranty.^*" then the obligation is "To pay any 540; Kennedy, etc., Co. vs. S. S. deficiency which may be due." At Const. Co., 123 Cal. 584; 56 Pac. the time of the execution of the 457; Heyman vs. Booley, 77 Md. guaranty, the lessee had already en- 162; 26 Atl. IIT; Oahill Iron Woiks tered upon his term and was at that vs. Pemberton, 62 N. Y. S. 944; time in arrears for rent. Held that Klosterman vs. United Electric CSo., the past due rent was not covered 101 Md. 29, 60 Atl. 251; Lomax vs. by the guaranty. Witkowsky, 124 111. App. 2161 ; Lom- 26 Solary vs. Stultz, 22 Fla. 263 ; poc Valley Bank vs. Stephenson, 104 Hughes vs. Littlefield, 18 Me. 400. P. 449 ; International Harvester Co. 2« Peake vs. Dorwin Est., 25 Vt. vs. Fleming, 92 A. 843 ; 109 Atl. 104. 28. ="• Ijagomarsino vs. Gianini, 80 2' Ante See. 16. Pac. 698; 146 Oal. 545; Hedden vs. 2S Erie Co. Savings Bank vs. Coit, Schneblin, 104 S. W. mi (Mo.); 104 N. Y. 532; 11 N. E. 54; Paul vs. 1126 Mo. App. 428; Standard Sup- Staekhouse, 38 Pa. 302; Hippach vs. ply Co. vs. Finch & Person, 60 S. Makeeyer, 166 111. 136; 46 N. E. E. 904; 147 N. C. 106. 790; Hirsch vs. Chicago Carpet Co., Contra — Where the thing was done 82 111. App. 234; Lennox vs. Mur- at the request of the guarantor, phy, 171 Mass. 370; 50 N. E. 644; I..aingor vs. Lowenthal, 151 111. App. Osborne vs. Lawson, 26 Mo. Apip. 599. 68 THE LAW OF STJEETYSHIP. It is not necessary that the guarantor should derive any bea- efit from either the principal contract or the guaranty. A ben- efit to the principal debtor is a sufficient 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 out, otherwise the benefit contracted for fails and the consideration fails." In England the rule appears to be that an actual forbearance xo 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.'^ Sudi a rule may be supported perhaps upon the ground of estoppel, since the party has had all the benefits of his proposal he should not escape its burdens. The American courts have 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; Bob- ertson vs. Findley, 31 Mo. 384; Sav- age vs. Fox, 60 N. H. 17; Garland vs. Gaines, 73 Conn. 662, 49 Atl. 19. 30 Coffin VB. Trustees, 92 Ind. 337 ; Dahlman vs. Hanunel, 45 Wis. 466; Lininger vs. Wheat, 49 Neb. 967; 68 N. W. 941; Peterson vs. Russell, 62 Minn. 220 ; 64 N. W. 955 ; Feath- erstone vs. Hendrick, 99 111. App. 497 ; Martin vs. Black, 20 Ala. 309 ; Davies v.s. Funaton, 45 Up. Can. (Q. B.) 360; Lee vs. Wisner, 38 Mich. 82; Mudge vs. Varner, 146 N. C. 147; 59 S. E. 540; J. H. Queal & Co. vs. Peterson, 116 N. W. 5'93; 138 Ta. 514; Jones vs. Britt, 168 F. 8.52; 94 C. C. A. 264. The agreement to extend the time or the forbearance to sue must be for a definite time, otherwise n'> spe- cial benefit results to the debtor, since the creditor may sue at any 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 a consideration. Sadler vs. Hawkes, 1 Eolle. Abr. 27, pi. 49. See also Steadmaa vs. Guthrie, 4 Met. (Ky.) 155. In Traders' Niatiooal 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 another 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 the parties to perform the acts stipu- lated, and such extension beins; in fact carried out, the consideration was held good. See also Moore vs. MoKenney, 83 Me. 80- 21 Atl. 749; McMicken vs. Safi'ord, 197 111. 540; 64 N. E. 540. A guaranty of a, note in con- sideration of an extension of time of payment is not invalid because there is no definite time fixed for such extension, where there is an actual forbearance for a reasonable time. Fee also Lefkovits vs. First Nat. Bank. In^ Ala. 5i21: 44 So. 613 Mia.); Standard Supiplv Oo. vs. Finch, 70 S. E. 745: 154 N. C. 496; .*t1as Shoe Co. vs. Bloom, 209 Mass. 563: 96 N. E. 952. 31 f^r/bh vs. Page, 17 Pa. 469. 32 Crears vs. Hunter, 19 Q. B. Div. 341. S3 Wehbe vs. Romona Ooliti" Stone Co., 58 111. App. 226 ; Shupe vs. Gal- COMMEBCIAL GUAEANTIES. 69 rapport a guaranty/* or a release to the.principal of securities held by the creditor," It is not necessary that the mutual promise of the principal and creditor out of -which the fnrsider- ation arises shall result in some benefit to the prindpaL If the creditor changes his position to his detriment it is o± itself sufficient consideration to bind the guarantor. §S8. 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 containing 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 necessary to use the words "prom- ise" or "guaranty" but words must be used whidi dearly 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, however, 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. Goldberg, 133 Wis. 17'5; 113 N W 5fi* ^i°S \t ^^^' ^^ ^^^- ^^- -^-PP- 3^1'; National Bank of Commerce 373; 40 S. W. 64; Hoffman vs. May- vs. Eookefeller, 98 C. C. A. 8- 174 and, 93 Fed. 171; 35 C. C. A. 256. F. 32. But see Breed vs. Hillhouae, 7 3? Case vs. Luse, 28 Iowa 527- Conn. 523, holding that actual for- Kimball vs. Eoye, 9 Rich. Law (S bearance to sue was prima facie evi- C.) 395; Eaton vs. Mayo, 118 Mass dence of an agreement by the cred- 141; Einstein vs. Marshall, 58 Ala ' itor to forbear. 153; Baker vs. 1 rotter, 73 Ala 277 34 Worcester Savings Bank vs. Switzer vs. Baker, 95 Cal 539- 30 Hill, 113 Mass. 25. Pac. 761; Hardy vs. Pool 41 N C 35 Koenigaberg vs. Lennig, 161 Pa. 28; Kenneweg Co. vs. Finnev ' q« 171; 28 Atl. 1016; Barney vs. Md. 114; 56 Atl. 488; HuS vs Forbes, 1118 N. Y. 580; 23 N. E. Peper Co., 13fl N. C 158- 51 S E 890; Killian vs. Ashley, 24 Ark. 793; Fowler National Bank'vs' "II- BrovTO, 19 Ind. Am. 433. 4fl -Nr SMRussellvs. Clark, 7Cranch69; E. 833. m- *oo, iy jn. Crooks vs. Propp, 66 N. Y. S. 753. ssSturgesvs. Circleville Bank 11 36Bushnell vs. Bishop Hill Col- a S. 153>; Union Nat B^k vs Isl ony, 28 111. 204; Thomas vs. Wright, Nat. Bank, 45 0. S 236^13 N F 98 NC. 37^; 3 S. E. 487 884; GoMring vs. TioSon, 58 " But see Miami Co. Nat. Bank vs. 248 ■ 51 So. 46. 70 THE LAW OF SUEETTSHIP. another " with assurance liiat any contract of his will and shall he promptly pa:id " it was held that the parties will be presumed to have intended a guaranty.^' §59. Continuing guaranties. All guaranties must he 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 whetiier the absence of express limitations results in a limited or continuing guar- anty ; whether a general authority, without any words of lim- itation as to time or amount, to make advances to anotiier 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 guaranty should be Construed most strongly 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 saine to himself, I will see that you have your pay in a reasonable length of time." This was held to be a limited guaranty. The Court says: " Every person is supposed to have some regard to his own 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." " 3» Moore vs. Holt, 10 Gratt. (Va.) Watts & Serg. (P*nn.) 237; Baker 284. vs. Rand, 13 Barb. (N. Y.) 152; io Ante Sec. 50. Smith va. S*ate, 10 Wye. 1'57 ; 67 41 Gard vs. Stevens, 12 Mich. 292. Pac. 977. See also Whitney vs. Groot, 24 In Schwartz vs. Ilyman, 107 N. Y. Wend. 92; Anderson vs. Blakely, 2 562; 14 N. E. 447, the guaranty COMMEBCIAL GUAEANTIES. 11 The remarks of the Court in this case would seem to apply also to the following guaranty : " Please let my daughter have •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 uncer- 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 Heffield." In reference to this the Court said : " It is obvious that we cannot decide that question upon the meire eonstrucfcion of the document itself, without, looking at the surrounding circumstances to see what was the subject matter which the parties 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 guariantee." And the Court held it to be a continuing guaranty.*' reads: "You will be kind enough Bennett, 3- Camp. 220; HJargreave to sent Jacob Posner a full line of vs. Smee, 6 Bing. 244; Maaon vs. samiplcB, of course suitable for Pritchard, 12 East. 2127; Merle vs. spring and summer, at the lowest Wells, 2 Camp. 413; Newcomb vs. figures. And I will guarantee the Kloeblen, 77 N. J. L. 7'91 ; 74 Atl. payment of any goods you may sell 511. him." This was held to be a tem- *3 Heffield vs. Meadows, 4 C P. porary guaranty and covered only Div. 595. one transaction. The court appears See also White's Bank vs. Myles, to have reasoned itself to this con- 7'3' N. Y. 335. In this case the guar- clusion, however, from the fact that anty read: "Please discount for the letter of credit contains refer- Mr. Cummer to the extent of $4,000. ences to samples suitable for spring He will give you customer's paper and summer, and hence not intended as collateral. You can also con- to cover the later seasons in which sider me responsible to the bank for goods were ordered, and the case the same." Held to be a continuing does not, on this account, fully sup- guaranty. port the general view stated in the Earl, J.: "It is Impossible to say tejct. Knowlton vs. Hersey, 76 Me. with certainty whether it was in- 345; Birdsall vs. Heacock, 32 0. S. tended as a guaranty for a single 177; Morgan vs. Boyer, 39 0. S. credit to the extent of $4,000, or as 324; Eiohardson School Fund vs. a continuing guaranty to that ex- Dean, 130 Mass. 248; National Bank tent. In such a case a resort, mny 'h'\ vs. Gam, 23 0. C. C. 447. had to the surrounding cireum- 42 Wright vs. Griffith, 121 Ind. stances, the nature of the business 478; 23 N. E. a&l. in which the credit was to be used, See also Young vs. Brown, 53 the situation and relation of all the Wis. 333; 10 N. W. 394; B'astow vs. parties and their previous dealings, 72 THE LAW OF SUEETYSHIP. If a guaranty is a continuing cne, unlimited as to the ' amount and period of time for which the guarantor will be liable, such time and amount must be reasonable under the circumstances of each particular ease.*'" §60. Same subject continued. A continuing guaranty which limits the amount is not ex- hausted by advancements for the 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 sum not to exceed $1,500."** and the negotiations which led to the giving of the letter, to enable the court to ascertain what waa 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 by the language he has em- ployed? Within this principle all jirior conversation between the par- ties is not excluded. Such conversa- tion may pertain to and explain the surrounding circumstanecs, 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.) 1'34; Mussey vs. Eiayner, 22 Pick. 223; Wood vs. Priestner, L. E., 2 Ex. ■66; Hotchkiss vs. Barnes, 34 Conn. 27; Boehne vs. Murphy, 46 Mo. 57; Whitall-Tatum Oo. vs. Manix. 113 N. Y. S. 1010 ; Merchants Nat. Bank vs. Oole, 88 0. S. 50; 93 N. E. 1165; National Bank vs. Thomas, 220 Pa. 960; 60 Atl. 813. 43oMamerow vs. National Lead Co., 206 IlL 626; 69 N. E. 504; Le- high Ooal A; Iron Oo. vs. Soallen, 61 Minn. 63; 63 N. W. 245; A. B. Small Oo. vs. Claxton, 1 Ga. App. 83; 57 S. E. 977; Cambria Iron Oo. vs. Keynes et al., 56 O. S. 501; 47 N. E. 548. «Orist vs. Burlingame, 62 Barb. (N. Y.) 3S1. 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; Frost vs. Stand- ard Metal Co., 215 111. 240; 74 N. E. 139; Paskucsz vs. Bodner, 75 N. J. L. 1047; 67 Atl. 1040; Malleable Iron Range Co. vs. Pusev, 244 111. 1S4; 91 N. E. 51; Heipringa vs. Ort- lepp, 167 111. App. 58«; Bond vs. John V. Farwell Co., 172 Fed. 58; 96 C. C. A. 546; Grob vs. Gross, 8S N. J. L. 430, 84 A. 1064. Contra — Boston & Sandwich Glass Oo. vs. Moore. 119 Mass. 4i35; Cut- ler vs. Ballou, 136 Mass. 337; Nich- olson vs. Paget, 1 Cromp. & Mees 48; Kay vs. Groves, 6 Bing. 276: White vs. Reed, I'S Oonn. 457; Al- dricks vs. Higgins, 16 Serg & Rawle 212; Finnucan vs. Feigenapan, 81 Conn. 37®; 71 Atl. 487. COMMEKCIAL GUAEANTIES. 73 §61. Absolute guaranties. If the liability of the promisor is fixed by the mere default of the principal it is an absolute guaranty but if the promisor's liability depends upon any other event than the non-perform- ance of the principal it is a conditional guaranty. Contracts of guaranty endorsed upon promissory notes are the most common forms of absolute guaranty. The time and amount of payment are "fixed, and the liability of the guarantor depends upon no other condition than that of non-payment by the maker. If the guaranty is absolute the holder is not re- quired to make denfand upon the maker and give notice to the guarantor of the default.*" It is not necessary to first pursue and exhaust the principal before proceeding against the guarantor in eases where the guaranty is absolute.** Where credit is extended for a definite amount, and for a definite time, no condition is imposed other than 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 « Davis vs. Wells, Fargo & Co., 668; 82Atl. 652; Lefkovitz vs. First 104 U. S. 199; Brown vs. Curtiss, 2 Nat. Bank of Gadsden, 44 So. 613; N. V. 212.5; (^lay vs. Edgerton, 19 0. 152 Ala. 5121. S. 549; Donley vs. Camp, 22 Ala. *« Cole vs. Merchants' Bank, 60 655; Parkman vs. Brewster, 15 Gray Ind. 350'; Woodstock Bank vs. Dow- 271 ; ('Jhafoin va. Rinh, 77 Gal. 476; ner, 27 Vt. 539; Roberts vs. Riddle, 19 Pac. 882; Tyler va. Waddingham, 79 Pa. 468; Osborne vs. Gullikson, 58 Oonn. 375; 20 Atl. 335; Gage vs. 64 Minn. 218; 66 N. W. 9«5; Penny Mechanics' Nat. Bank, 7« III. 62; vs. Crane Bros. Mfg. Co., 80 111. 244 ; Roberts va. Hawkins, 70 Mich. 966; London, etc.. Bank vs. Smith, 101 38 N. W. 575; Klein vs. K.€rn, 94 Cal. 41t5; 36 Pac. 1027; Doyle vs. Tenn. 34; 28 R W. 285; Hubbard Nesting, 88' Pac. 8«2; 37 Ool. 922; vs. Haley, 96 Wis. 578; 71 N. W. Loverin & Browne Co. vs. Travis, 1036; Campbell vs. Baker, 4)6 Pa. 116 N. W. 829; 135 Wis. 322. 243 ; Milroy vs. Quinn, 69 Ind. 406 ; The earlier cases in some juriadie- Fegley va. Jennings, 44 Fla. 203 : 32 tions make no diatinction between So. 873 ; Stewart va. Knight & Jill- absolute and conditional guaranties, son Oo., I'e6 Ind. 4S'8 ; 76 N. E. 749. and seem to rest upon the asaumip- But aee Lemmert vs. Guthrie tion that although the guarantv is Brothers, 69 Neb. 4S9 ; 95 N. W. abaolute, yet the principal must first 1046, where the court held that be exhauated before recourse can be guarantors pf a note were entitled had to the guarantor. Rudy vs. to reasonable notice of default of the Wolf, 16 Serg. & R. 79'; Johnston vs. maker. Providence Madh. Oo. vs. Cliapman, 3 Pen. & W. (Pa.) 18; Browning, 68 S. C. 1; 46 S. E. 550; Farrow va. Respess, 11 Ired. Law Pleaaantville Ijoan Soc. vs. Moore, (N. C.) 170: Benton vs. Gibson, 1 70 N. J. L. 306 : 57 Atl. 1034 : Booth Hill. Law (S. C.) 96; Craig vs. vs. Irving Nat. Exch. Bank, 116 Md. Phipps, 23 Miss. 240. 74 THE LAW OF SUEETYSHIP. of time to the debtor places the transaction upon the same basis as an absolute guaranty of a note. In either case it is a guaranty of payment at mattirity. The guarantor has the means of knowing in advance. the exact amount of his con- tingent liability, and the exact time it will fall due, and no conditions of demand and notice enter into such contract.*^'' A contract of guaranty for the payment of the rent and the performance of the lessee's covenants for the full term of the lease, made in consideration of the letting of the premises, is an absolute guaranty and renders the guarantor liable im.- mediately upon the default of the lessee.*" §62. Guaranty cf 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 guaranty of collectibility or sol- vency 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 conditional, and if the credi- tor by due diligence might have, recovered from the debtor at maturity, or at any other time before bringing his action against the guarantor, then the guarantor is exonerated, for his promise is upon the condition that such diligence will be used.*^ 4611 Murphy vs. Hart, 132 App. der special circumstances) any de- Div. 549 ; Tilt-Kenney Shoe Co. vs. f euse to the guarantor ; while in the Haggarty, 43 lex. Civ. App. 33'5; second case the undertaking is that 114 S. W. 386; Stewart vs. Sharp' if the demand cannot be collected by County Bank, 71 Ark. 585; 76 S. legal proceedings the guarantor will W. 1064; Great Western Printing pay, and consequently legal proceed- Oo. vs. Belcher, 1B7 Mo. App. 133; ings against the principal de-btor, 104 S. W. 894. and a failure to collect of him by ■tss Garland vs. Gaines, 73 Oonn. those means are eonditioois precedent 662; 40 Atl. 19. to the liability of the guarantor; *7 "The fundamental distinction and to these the law, as established between a guaranty of payment and by numerous decisions, attaches tihe one of collection is, that in the first further condition that due diligence case the guarantor undertakes un- be exercised by the creditor in en- conditionally that the debtor will forcing his legal remedies asainat pay, and the creditor may, upon de- the debtor." Bapallo, J., McMur- fault, proceed direotlv against the ray vs. Noyes, 72 N. Y. 524. guarantor, without' takin.^ any, steps iSee also Beardsley vs. Hawes, 71 to collect of the prinfeipal de'btor,' CVnn. 39; 40 Atl. i043; JEJvans v& and the omission or neglect to pro- Bell, 45 Tex. 553. cped against him is not (fexcept un- COMMEKCIAL GUAEANTIES. 75 No special form of words is required to bring the 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 bo fairly import a guaranty only after the one primarily liable had been diligently prosecuted."^ §63. Test of due diligence. There is a difference of holding as to what constitutes due 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. sufficient proofs, of entire or notori- so Opdeman vs. Lawson, 49 Md. ous insolvency, is recognized by the 135. law as answering the demand of due Bi Pittman vs. Chisolm, 43 Ga. diligence, and as dispensing, under 442. such circumstances, with the more 62 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. 625 ; MoClurg vs. Fryer, 15 diligence" to collect from the sev- Pa. 393; 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 Mass, 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 ; Bracks suit to judgment with a, return of ett vs Rich, 23 Minn. 485; Dillman nulla bona, has always been re- vs. Nadelhoffer, 160 111. 125; 43 N. garded 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 THE LAW OF SUBETTSHIP. Opposed to this are many decisions in courts of high standing holding that the non-coUectibility of the debt as against the principal can only be established by a process of law resulting in a judgment and execution with a return of nulla bona, and that the fact of non-coUectibilily 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 proeecute an action in such a way as to be barren of results. If the 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 right to bring suit against him has accrued, utterly and hopelessly in- solvent, with no property, out of which 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- sante ratione legis, cessat ipsa 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 'This must be so, unless we are prepared to hold that the creditor should lose Ms 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 becotaes in- solvent, the guarantor is discharged because of the failure to bring suit in the first instance. Crane vs. Wheeler, 48 Minn. 207. •sOaig vs. Barkis, 40 N. Y. 181; French vs. Marsh, 29 Wis. 640; Bos- man vs. Akeley, 30 Mich. 710; Blanding vs. Shepard, 101 App. Div. .442 (N. Y.). 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 directly for that purpose by employing the ordinary 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. COMMMECIAI, GUAEANTIES. 77 the debtor and fails to inform the sheriff holding the execution, a return of nulla bona by the officer, while prima facie evi- dence of diligence, ought not to be conclusive." What constitutes due 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 question of law for the court."* If the. creditor relies upon the insolvency of the principal as a justification for not bringing suit, the burden is upon him to show such insolvency of the 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 die 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 upon such guaranty ought not to be binding upon the guarantor, unless notice of such acceptance is given, thus placing the guarantor in a position where he may protect himself from loss so far as the circumstances 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. Bechtel, 52 Pa. 194. and fact to be submitted to the jury soNat. Loan & Bldg. Soc. vs. only when the facts are in dispute, liichtenwalner, 100 Pa. 103. or if undisputed, they are of such a 08 Graham vs. Bradley, 5 Humph. nature that reasonable men might (Tenn.) 476. differ in regard to the inferences But see Mead vs. Parker, 111 N. proper to be drawn from them. Y. 262; 18 N. E. 727, where it is ot Allen vs. Rundle, 50 Conn. ». held to be a mixed question of law tS THE LAW OF SUEBTYSHIP. the amount of the obligation of the principal and the exact time of payment are known to the guarantor at the time he signs the agreement, but in both cases he may have no mea^ of knowing whether the creditor accepts the arrangement, if notice of ac- ceptance is to be considered unnecessiary. A general letter of credit authorizing advancements to the debtor in such amounts as he should ask for, and upon such terms of credit as the debtor should desire places the guarantor at a still greater disadvantage, as in such a case 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 axe not fixed at the time of his agreement, whether he may «.lso 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 future 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 COMMBBCIAL GUAEAITTIES. 79 aifected by the uncertainty as to wtedJier the order will be aa- 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 ar- rangement may place upon the vendee. It may be said that as between vendor and vefidee the latter always has notice by the mere receipt of the goods that his order has been accepted and that there is no corresponding construc- tive notice coming to the guarantor ; but this knowledge by the vendee is no neceseaiy part of his contraxjt^ 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 does- not know the 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 advancei the argument 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 often 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 OP SUEETTSHIP. are the 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 condition will not be implied from the fact that lack of notice in some cases increases the risk of the imdertaking, and in this respect the 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 gpiaranty. The ease of Russell vs. Clark ''* decided by Chief Justice Marshall 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 guarantor. The defendants in this 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 engagements." In Edmonston vs. Drake,°* 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 : " It 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. Eeynolds (1833),'" the question was fairly presented and the rule made the subject of an authoritative 118 7 Cranch 69. . bo 7 Pet. 113. =85 Pet. 637. OOMMESCIAL GUASANTIES. 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 case 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 tiie 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 «i Lee vs. Dick, 10 Pet. 496. «" " 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 essential Clarke, Edmondson vs. Drake, to an inception of the contract." Douglas vs. Eeynolds, Lee vs. Dick. Louisville Mfg. Co. vs. Welch, 10 .... It is in itself a roasonable How. 461. rule, enabling the guarantor to See also Davis vs. Wells, 104 U. S. know the nature and extent of his 165, Mathews, J. : " The rule in ques- liability ; to exercise due vigilance tion proceeds upon the ground that in guarding himself against losses the case in which 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 responsibll- whom it is made; that until then it ily." is inchoate and incomplete and may See also Reynolds vs. Douglass, 12 l>e withdrawn by the proposer." Pet. 497; Cremer vs. Higginson, 1 Mason 323. 82' THE LAW OF SXTBETYSHIP. rule have, however, somewhat reduced its application even in the Federal Court. ' The rule vdll not be applied if the failure to give notice works no hardship on the guarantor, such as where the debtor is insolvent and remains msolvent or where he is solvent and remains solvent. Nor 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 guaranty is itself the acceptance, and hence the elements of mutual assent are supplied.'^" Nor where there is a valuable consideration moving from the creditor other than the 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 the 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 notice'has operated to his detriment by reason of the changed financial condition of the debtor. The elaborate generalizations of the earlier cases have been reduced 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 Ic^cally ifepudiated 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 advancea will satis- fy the requirements of an acceptance.** 020 McFarlane vs. Wadihama, 165 •>* Hart vs. Minchen, 69 Fed. Eep. Fed. 987. 520. 63 Davis vs. Wells, 104 U. S. 159; Notice of acceptance will also be Davis Sewing Mch. Co. vs. Kichards, presumed from circumstances which 115 U. S. 524, 6 S. Ot. 173; Barnes show that the guarantor had actual vs. Reed, 84 Fed. Rep. 603 ; Butvier knowledge of the fact that the cred- vs. Baldwin, 137 Mich. 263; 100 N. itor has acted upon the guaranty. W. 468; Bond vs. John V. Farwell See First Nat'l Bank Dubuque vs. Oa, 172 Fed. 58; 96 €. C. A. 546; Carpenter, 41 Iowa 518; Adams vs. MoConnon & Co. vs. Lawsen, 135 N. Jones, 12 Pet. 207; Powell vs. CM- W. 213; 22 N. D. 604. OOMMEBCIAL GUAEANTIES. 83 §66. Bule of the state courts as to notice of acceptance of £^r- anty. A number of the States have rejected the rule in force in the Eederal Court. New York and Ohio and several other States of commercial importance have asserted the doctrine that notice of acceptance of a guaranty ia 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 mate 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 exprespion of these courts is that notice of accept- ance is not required in the case of an absolute guaranty. The term " absolute " guaranty 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 N'ew 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 'New 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, that 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 Mitchell vs. Railton, 45 Mo. App. will be sufficient. 273 ; Oaks vs. Weller, 16 Vt. 63. «' Union Bank vs. Coster, 3 N. Y. It is generally held that notice of 212. acceptance communicated to l^e 84, THE LAW OF SUKETYSHIP. 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 rule in force; the majority, perhaps, standing upon the proposition that a letter, of credit relating to future advancement is a mere offer to contract in suretyship which requires mutual assent to become binding. °°'' 08 Smith vs. Dann, 6 Hill, 544. See also City Nat. Bank vs. Phelps, &6 N. Y. 484. In Whitney vs. Groot, 24 Wend. 82, the letter of credit was "We consider Mr. J. V. E. good for all he may want of you, and we will indemnify the same." The Court says: "The instrument did not con- template any notice of acceptance, or of the sates to the defendant made in pursuance of it; it was not a proposition to become surety for Van Bps, but an absolute undertak- ing to pay for the goods if he did not, and obviously contemplated a sale and delivery on presentation. Unless there is something in the na- ture of the contract or terms of the writing creating or implying the ne- cessity of acceptance or notice as a condition of liability, neither are deemed requisite." The following oases are in accord with the New York doctrine: Pow- ers vs. Bumcratz, 12 O. S. 273 ; Wise vs. Miller, 45 0. S. 388; M N. E. 218; Boyd vs. Snyder, 49 Md. 325; Crittenden vs. Fiske, 46 Mich. 70; 8 N. W. 714; Platter vs. Green, 26 Kana. 252; Wilcox vs. Draper, 12 Neb. 138 ; 10 N. W. 579 ; Klosterman vs. Olcott, 25 Neb. 382; 41 N. W. 250; Bright vs. McKnight, 1 Sneed (Tenn.) 158; Yancey vs. Brown, 3 Sneed 89; Bank of California vs. Union Packing Co., Ill Pac. 573; 60 Wash. 496; Cowan vs. Roberts, 134 N. C. 41'5; 46 S. E. 979; Wat- kins Medical Co. vs. Brand, 143 liy. 408 ; 136 S. W. 867 ; Am. Exchange Bank vs. Seaverns, 121 111. App. 480; Pressed Eadiator Co. vs. Hughes, 155 III. App. 80; Frost vs. Standard Metal Co., 215 111. 240; 74 N. E. 1089; Stewart vs. Sharp County Bank, 71 Ark. 586; 76 S. W. 1064; Sheffield vs. Whitfield, 6 Ga. Apip. 762; 6.5 S. E. 807; Shep- pard vs. Daniel Miller Cb., 7 Ga. App. 760; ©8 S. E. 451. 80O Hall's Ex'or vs. Farmers Bank of Ky., 23 Ky. Law Kep. 1450; 65 S. W. 365; Pearsell Mfg. Co. vs. Jeffreys, im Mo. 386; 81 S. W. 901; Acme Mfg. Co. vs. Reed, 197 Pa. St. 359; 47 Atl. 205; William Deering & Co. vs. Mortell, 110 N. W. 86; 21 S. D. 139; Miami County Nat. Bank vs. Goldberg, 133 Wis. 175; 113 N.W. 3*1; King vs. Bat- terson, 13 R. I. 117; J. S. Rowell Mfg. Co. vs. Isaacs, 138 S. W. 760; 144 Mo. App. 58; J. R. Watkins Medical 'Co. vs. McOall, 133 N. W. 966; 116 Minn. 389; Lester Piano Co. vs. Eomney, 126 Pac. 325 (Utah) ; Black, Starr & Frost vs. Grabow, 216 Mass. 516; 104 N. E. 346; Asmussen vs. Post Printing & Pub. Co., 143 P. 396 (Ool.). COMMERCIAL GUARANTIES. 84a The reasoning along tliis 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 necessary to the inception of the contract of guaranty, but that the guarantor has a right to know whether a contract has been made, that is, whether the creditor has acted on the pro- posal, and if he does not get such knowledge, either by notice from the creditor or (semble) from some other source, he may withdraw the guaranty even though the creditor has acted upon it. Thus, it is said: "The language relied on was an offer to guarantee, 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 taken on the faith of his offer. But if the act is of such a kind that knowledge of it will not come quickly to the promisor, the promisee is bound to give him notice of his 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 ihat the promisee can not he affected hy a subseqwent vnthdrawal of it, if within a reasonable time afterward he notifies the prono- isor."^'' «7 Knowlton, J., in Bishop vs. 90 N. E. 875; Cumberland Glass Ea'ton, 161 Mass. 499; 37N. E. 665; Mfg. Co. vs. Wheaton, 20« Mass. Lascelles vs. Clark, 204 Mass. 362; 4'2-5; 94 N. E. 803. 84b THE LAW OP SURETYSHIP. Where the contract of guaranty is executed contemporaneous- ly with and as a part of the consideration for, the transaction guaranteed, notice of acceptance is not required.*^" Where a guarantee is given in response to a request for it by the creditor, no notice to the guarantor that he has been accepted is necessary to bind him.*'"' Where the guaranty states a consideration moving directly from the guarantee to the guarantor this is sufficient to show an absolute contract of guaranty as distinguished from a -mere offer of guaranty.*^" The rule of a lai^e 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 with the Federal Court except as to the grounds upon which the decisions rest." 8TO ClosBon vs. Billman, 161 Ind. 610; 69 N. E. 449. Contra — American Agricultaral Chem. Oo. vs. Elsworth, 83 A. 546; 109 Me. 105. 676 Nelson Mfg. Co. vs. Shreve, 94 Mo. App. 518'; 68 S. W. 376; Stew- art vs. Sharp County Bank, 71 Ark. 585; 76 S. W. 1064; MeFarlane vs. Wadhams, 165 Fed. 987; TUt-Ken- ney Shoe Oo. vs. Haggarty, 43 Tex. Civ. App. 335; 114 S. W. 386; Hill Mercantile Co. vs. Eotan Grocery Co., 127 S. W. 1080 (Tex.); J. L. Mott Iron Works vs. Clark, 69 S. E. 227; 87 S. C. 189; Shows vs. Steiner, Logman & Frank, 57 So. 701; 175 Ala. 363. Contra — Acme Mfg. Oo, vs. Reed, 197 Pa. St. 3519 ; 47 Atl. 206 ; Ameri- can Agricultural Chem. Co. vs. Ells- worth, 83 A. 546; 107 Me. 105. 67C Emerson Mfg. Oo. vs. Eustad, 120 N. W. 1094; 19 N. D. 8; Buhrer TS. Baldwin, 137 Mich. 263; 100 N. W. 468; Shows vs. Steiner, Lobman & Frank, 57 So. 70il; 1176 Ala. 363; McConnon & Oo. vs. Laursen, 13i5 N. W. 213 ; 22 N. D. 604. Contra — 'Acme Mfg. iCio. vs. Heed, 197 Pa. St. 359; 47 Atl. 205; Ameri- can Agricultural Chem. vs. Ells- worth, 83 Atl. 546; 109 Me. 195. osMussey vs. Eayner, 22i Pick. 223; Winnebago Paper Mills vs. Travis, 56 Minn. 480; 58 N. W. 36; Central Savings Bank vs. Shine, 48 Mo. 456; Tolman Oo. vs. Means, 52 Mo. App. 385; Walker vs. Forbes, 25 Ala. 130; Cahuzae vs. Samini, 29 Ala. 288 ; MdCoUum vs. Oushing, 22 Ark. 540; Eapelye vs. Bailey, 3 Conn. 438 ; Craft vs. Isham, 1'3 Oonn. 28'; Buckingham vs. Murray, 7 Houst. 176; Coe vs. Buehler, 110 Pa. 3«6; 5 Atl. 20; Evans vs. McOor- mick, 167 Pa. 247; 31 Atl. 563; Wil- kins vs. Carter, 84 Tex. 438; 19 S. W. 997; Woodstock Bank vs. Dow- ner, 27 Vt. 539'; Noyes vs. Nichols, 28 Vt. 159; Ellis vs. Jones, 70 Miss. 60; 11 South. 566; Tuckerman vs. COMMERCIAL GUARANTIES. 85 A stipulation that the guarantor shall receive notice of default has been held to imply a waiver of notice of accept- ance.'" The right to receive such notice is also waived by a subsequent promise to pay.'"' It is not necessary that the notice of acceptance come from the creditor. Knowledge is equivalent to notice from whatever source derived and will operate as sufficient notice if acquired within a reasonable time.'"" §67. Notice to ^arantor of default of principal. A guaranty of payment or performance at a definite time in- volves no duty on the part of the creditor to give notice of de- fault to the guarantor. The liability of the guarantor becomes absolute by the default unless notice is stipulated in the contract. If the guarantor is to stand merely upon the exuress terms of his contract there is no ground for demanding notice unless such condition is incorporated in his agreement. The law merchant which gives the endorser the right of notice without stipulating such condition in the contract does not apply to the guarantor. French, 7 Me. 116; EufFner vs. Lave, to require no notice of its accept- 33 111.' App. 601; Meyer vs. Ruh- ance. Stewart vs. Knight & Jillson stadt, 66 111. App. 34i6. Co., 16« Ind. 498, 76 N. E. 743. Ko distinction is made in these o" Wadsvrorth vs. Allen, 8 Gratt. cases between contracts for definite 174. time and amount and contracts for Contra — ^Taylor vs. McClung, 2 future optional advances. Houst. (Del.) 24. In Indiana notice is not required ""> Gamage vs. Hutohins, 23 Me. if the guaranty is for a definite 965 ; Sigourney vs. Wetherell, 6 Met. amount payable at a. definite time. 553; Ashford vs. Robinson, 8 Ired. Kline vs. Raymond, 70 Ind. 271; 114. Snyder vs. Click, 112 Ind. 2^; 13 ^oo .Cumberland Glass Mfg. Cb. Hr. E. 581. vs. Wheaton, 208 Mass. 425; 94 N. But see Wright vs. Grifiith, 121 E. 803 ; Greer Machine Oo. vs. Sears, Ind. 478; 23 N. E. 281. In this ease 23 Ky. Law Rep. 2025; 66 S. W. the letter reads: "Please let my 521; Pearsell Mfg. Co. vs. Jeffreys, daughter, Mrs. H., have what goods 18® Mo. 366 ; 81 S. W. 901 ; Kelson she wants and I will stand good for Mfg. 'Co. vs. Shreve, 94 Mo. App. the money to settle th« bills." Held 518; 6S S. W. 3T6. 86 THE LAW OP SUEETYSHIP. The lack of notice puts no burden upon the guarantor as he knows the date of the maturity of the obligation and may, therefore, take such steps as are necessary to protect his inter- ests in case of non-performance by the principal. A guaranty upon the back of a note reading "For value, I hereby guarantee the payment of the within note" was held to import an absolute obligation to pay if the maker did not, and that no notice of default was necessary to bind the guarantor. In this case, there was a prior indorser upon whom the guar- antor might have relied if notice of default had been given such indorser, but the holder gave no such notice to either the guar- antor or the prior indorser, and the guarantor had no knowledge of the non-payment until more than a year after maturity. The maker of the note was solvent at maturity and insolvent at the time of notice to the guarantor. By this lack of timely notice the guarantor lost his recourse against both the maker and the prior indorser. But the Court says: " The nature of the obligation of the guarantor is affected by the charactsir of the principal contract to which the guaranty relates. The note ex- pressed the absolute obligation of the maker to pay the sum named at the specified date of maturity or before. The guar- anty of ' the payment of the within note ' imported an under- taking, without condition, that) in the event of the note not being paid according to its terms, — that is, at maturity, — the guarantor should be responsible. " The non-payment of the note at maturity made absolute the liability of the guarantor, and an action might at once have been maintained against him without notice or demand. Such was the effect of the unqualified guaranty of the payment of an obligation which was in itself absolute and perfect and certain as respects the sum to be paid, and the time when payment should be madcj — all of which was known to the guarantor, and appears upon the face of the contract. " The liability of the guarantor thus becoming absolute by the non-payment of the note, the neglect of the holder to pursue such remedies as he might have against the maker (the guar- COMMERCLUj guabanties. 87 antor not having required him to act) would not discharge the already fixed and absolute obligation of the guarantor, nor would neglect to notify the guarantor of the non-payment have such effect."" TiHungerford vs. O'Brien, 37 Minn. 306; 34 N. W. 161. See also Deck vs. Works, 57 How. Pr. 292. In Brown vs. Ourtiss, 2 N. Y. 230, the Court says: "The direct engage- ment of the indorser of a negotiable note, and of the guarantor of the payment of a note, whether nego- tiable or not, is the same. Both undertake that the maker will pay the amount wihen it shall become due. If there is a, failure in such payment, botli contracts are broken. Ordinarily, upon the breach of a con- tract, the party bound for its per- formance immediately becomes liable for the consequent damages. In the ease of the indorser of a negotiable promissory note, however, the liabil- ity does not become absolute, unless due notice of non-payment is given to the party whom it is intended to charge. That is not because the in- dorser has thus stipulated in terms, but it is a condition annexed by the rules of the commercial law. "In the case of a guarantor there is nothing to exempt him from the ordinary liability of parties who have broken their contracts, which is direct and not conditional. No condition requiring notice of non- payment is inserted in the contract, nor is any inferred by any rule of law. The guarantor is bound to as- certain for himself whether his con- tract has been performed, and can easily obtain the requisite informa- tion from the party for whose con- duct he has assumed the responsi- bility. If he fails to do that, there is no principle which would author- ize him to inflict upon another the consequences of his own neglect." See also Eeads vs. Cutts, 7 Greenl. 186; Breed vs. Hillhouse, 7 Conn. 523; Allen vs. Kightmere, 20 Johns. 365; Campbell vs. Baker, 46 Pa. 243; Roberts vs. Riddle, 79 Pa. 468; Bank vs. Sinclair, 60 N. H. 100; Dickerson vs. Derrickson, 39 III. 574; Penny vs. Crane Bros. Mfg. Co., 80 111. 244; Wright vs. Dyer, 48 Mo. 525; Kline vs. Raymond, 70 Ind. 271; Clay vs. Edgerton, 19 O. S. 549; Castle vs. Riokly, 44 0. S. 490; 9 N. E. 136; Walton vs. Mascall, 13 M. & W. 72; First Bank vs. Babcock, 94 Cal. 96; 29 Pac. 415; Hoover vs. MeCormick, 84 Wis. 215; 54 N. W. 505; Wright vs. Shorter, 56 Ga. 72; Roberts vs. Hawkins, 70 Mich. 566; 38 N. W. 575; Holmes vs. Preston, 71 Miss. 541; 14 South. 455; Flen- tham vs. Steward, 45 Neb. 640; 63 N. W. 924; Heyman vs. Dooley, 77 Md. 162; 26 Atl. 117; McKee vs. Needles, 123 la. 195; 98 N. W. 618; Braddock vs. Wertheimer, 68 Ark. 423; 59 S. W. 761; Stewart vs. Sharp County Bank, 71 Ark. 585; 76 S. W. 1064; Stewart vs. Knight & Jellson Co., 16 Ind. 498; Pleas- antville Loan Society vs. Moore, 70 N. J. L. 306; 57 Atl. 1034; Pfaelzer vs. Kau, 207 111. 116; 69 N. E. 914; Miller vs. Lewiston Nat. Bank, 108 P. (Idaho) 901; People's Bank vs. Stewart, 152 Mo. App. 314; Booth vs. Irving Nat. Exch. Bank, 116 Md. 668; Providence Machine Co. vs. Browning, 68 S. C. 1; 46 S. E. 550; Tilt-Kenney Shoe Co. vs. Haggarty, THE LAW OF SURETYSHIP. This rule will not logically admit of any modification in the eases where actual damage results to the guarantor from lack of notice, at the same time holding to the rule where no damage is shown. The modified rule held by some courts tliat the guarantor of definite payment is discharged by lack of notice of default to the extent of his damage resulting from lack of notice comes to this, that if the guarantor is diligent and gives such attention to his outstanding obligations as enables him to escape additional loss without notice, then notice is not neces- sary to fix his liability. But if by lack of diligence and inattention he meets a loss which notice would have averted, then lack of notice is -a de- fense.'''' 43 Tex. Civ. App. 335; MeConnon vs. Laursen, 135 N. W. 213; 22 N. D. 604. The great uniformity of holding on this point as well as the forcible logic of the decisions renders some- what conspicuous the few cases maintaining the opposite view. See Einggold vs. Newkirk, 3 Ark. 96; McCollum vs. Gushing, 22 Ark. 540; Cox vs. Brown, 51 N. C. 100; Reynolds vs. Edney, 53 N. C. 406; Mayberry vs. Bainton, 2 Harr. (Del.) 24; Oxford Bank vs. Haynes, 8 Pick. 477; Brown vs. Spiegel, 156 Mich. 138; 120 N. W. 579; Andrews vs. Pope, 126 N. C. 472; 35 S. E. 817; Shores-Mueller Co. vs. Knox, 141 N. W. 948. See Lemmert vs. Guthrie Bros., 69 Neb. 499, where the court said: "The guarantor's contract is a guaranty of the mak- er's solvency, and unless there is a different intention expressed in the contract, he is entitled to rea- sonable notice of the default of the maker." 72 The modified rule that lack of notice discharges the guarantor of a definite payment or performance to the extent of the loss, appears to be in force in several States. Fuller vs. Scott, 8 Kan. 25; Withers vs. Berry, 25 Kan. 373; Lewis vs. Brewster, 2 McLean 21; Gamage vs. Hutchins, 23 Me. 565; Globe Bank vs. Small, 25 Me. 366; Oxford Bank vs. Haynes, 8 Pick. 423 ; Talbot vs. Gay, 18 Pick. 534; Whiton vs. Mears, 11 Met. 563 Farrow vs. Eespess, 11 Ired. 170; Cox vs. Brown, 6 Jones (N.'C.) 100 Swisher vs. Deering, 204 111. 203 68 N. E. 517. But see Pfaelzer vs. Kau, 207 111. 116; 69 N. E. 914. In Iowa, if the guarantor is an accommodation party he cannot be held without notice of default, un- less the plaintiff alleges and proves as a part of his prima facie case that the guarantor was not dam- aged by lack of notice. Sabin vs. Harris, 12 Iowa 87; Picket vs. Hawes, 14 Iowa 400. If, however, the guaranty is made by the payee, or a party in the chain of title, the guarantor must assume the burden of alleging and proving damage to himself from lack of no- tice, and may set off such damage against his liability. Peck vs. Frink, 10 Iowa 193; Martyn vs. Lama, 75 Iowa 235; 39 N. W. 285. OOMMERCIAI. GXJABANTIES. 89 In Massachusetts, the Court has adopted the view that al- though notice of default is not a condition of the contract and the liahility of the guarantor attaches immediately upon de- fault and without notice, yet the guarantor may be damaged by the negligence of the creditor in not making seasonable demand upon the guarantor, and for such damage he may claim set-off. " Negligence of the holder of the guaranty, in permitting the claim to slumber, when the guarantor might reasonably suppose it had been paid when due, or in the usual course of business, is the real ground on which the guarantor is exonerated. It is delay without notice, and not the bringing of a suit without notice, that is fatal to the holder of the guaranty. " This view. of the law places guaranties upon the same foot- ing with other contracts where the right of action accrues upon tiie performance or non-performance of some act by a third party." " §68. Cases in which notice to guarantor of default is necessary. (1) Where notice is stipulated for in the contract failure to give such notice will discharge the guarantor altogether, and 'sVinal vs. Kichardaon, 13 Allen duty to see that the sum guaran- 532. The rule stated in the text teed is paid, and that there is no has been modified by the later Mas- duty on the creditor to give notice sachusetts decisions. Watertown to the guarantor of a default in pay- ing. Co. vs. Simmons, 131 Mass. 85; ment by the principal debtor, and and Welch vs. Walsh, 177 Mass. that if the guarantor, in violation 555; 59 N. E. 440. In the latter of his duty, has slumbered because case the guarantor of a lease was he supposed that in the absence of held not discharged from liability, a demand by the creditor the act although the lessor did not notify guaranteed had been performed by the guarantor of the default of the the principal debtor and has suf- leasee until after twenty-three fered damage from so doing, he has months had elapsed, during fifteen nothing of which he can complain of which the lessee had abundant but his own negligence, and is liable property. The court said: "We are to pay the sum which he guaranteed of opinion that when the obligation should be paid." See also Cumber- of the guarantor is to pay a definite land Glass Mfg. Co. vs. Wheaton sum at a definite time, it is his et al., 208 Mass. 425; 94 N. E. 803. 90 THE LAW OF SUEETTSHIP. he may avail himself of this defense without showing himself damaged in any amoimt by not receiving notice. It is like any other conditional contract, and can not be en- forced except upon performance of the condition. (2) Notice of default within a reasonable time is necessary where the facts upon which the guarantor's liability rest are not within the guarantor's knowledge or depend upon the cred- itor's option. If it is a- guaranty of collectibility the non-pay- ment at maturity is not the default which fixes the liability, but it is the insolvency of the principal debtor which is the basis of the claim against the guarantor. If it is stipulated that such insolvency shall be tested by legal process, then it is clear that the guarantor does not know and has no means of knowing whether the principal is insolvent or when the creditor will take the necessary steps to find out the debtor's condition, and the same result follows where legal proceedings are deemed the sole test of insolvency, although not stipulated in the contract,'^* and notice. to the guarantor of default under these circum- stances is generally held necessary and for the very satisfactory reason that the guarantor can not even by active diligence pro- tect himself without notice."' f 4 Ante Sec. 63. difllculty, in ease of the guaranty TB " Demand and notice, however, of the goodness or collectibility of a are requisite to charge a guarantor, debt. The contingency upon which where the fact on which his liabil- the liability is made dependent, rests ity is made dependent rests peculiar- upon the action of the guarantee, ly within the knowledge of the guar- and depends on his option. The re- antee, or depends on his option. But suit of his efforts to enforce the lia- where the fact which determines the bility of the principal, and the pe- liability, is one which the guarantor riod of their termination are of ne- knowa, or la bound to know, or ceaaity peculiarly within his knowl- whieh ia equally within the power edge." Bashford vs. Shaw, 4 O. S. of both parties to ascertain; in 267. other words, where each party has. See also White ys. Walker, 31 111. in legal contemplation, equal means 422 ; Taussig vs. Reid, 145 111. 488 ; of information, the guarantor must 32 N. E. 918; Farwell vs. Smith, 12 take notice at his peril. The appli- Pick. 83 ; Sylvester vs. Downer, 18 cation of the rule requiring demand Vt. 32; Morris vs. Wadsworth, If and notice, founded on the reasons Wend. 103. above mentioned, ia cleared of all COMMEECIAl GUAEANTIES. 91 The same reasons would seem to apply -where the debt is pay- able on demand." (3) A third class of cases arises out of continuing guaran- ties of payment for future advancements under a general letter of credit It is said that notice of default should be given the guarantor because at the time of the contract he does not know the amount of the future advancements, or the date of maturity, and, in this respect, the same argument prevails which is ad- vanced in connection with the question of the guarantor's right to have notice of the acceptance of his guaranty.'^ The fact of default in this class of cases is not, however, peculiarly within the knowledge of the creditor or dependent upon his option as in the case of guaranty of collectibility or debt due on demand, and the guarantor's means of information as to whether default has been committed are theisame as in the case of the guaranty of a definite amount at a definite time. In either case, he does not know of the default except by reliance upon information received after the execution of his contract, and in both cases he may get this information by inquiry of the debtor or creditor; although the reasons for requiring notice of default in these cases are not wholly satisfactory, yet a large number of decisions are to be found supporting the view that notice of default may be required in continuing guaranties of payment, where the guarantor at the time of his contract does not know the amount nor the maturity of the debt.''* In all cases where notice of default is required the failure to give such notice within a reasonable time will only discharge the guarantor to the extent of his damage in not receiving notice." '8 Waiton vs. Meara, 11 Met. 663; for want of it, unless the notice has Nelson vs. Bostwick, 5 Hill 37; been so long delayed as to raise a Douglas vs. Kathbone, 5 Hill 143. presumption of payment or waiver. But see Foster vs. Barney, 3 Vt. or unless he can show that he has 60. lost, by the delay, opportunities for ^^Ante Sees. 64, 65, 66. obtaining securities, which a notice, 78 Clark vs. Eemmington, 1 1 Met. or an earlier notice, would have se- 361; Mussey vs. Rayner, 22 Pick. cured him If the notice be 228; Gaff vs. Sims, 45 Ind. 262; delayed a very short time, but by- Douglass v9. Reynolds, 7 Pet. 113; reason of the delay the guarantor Davis vs. Wells, 104 U. S. 159; Bee- loses the opportunity of obtaining be vs. Dudley, 26 N. H. 249 ; Walker indemnity, and is irreparably dam- vs. Forbes, 25 Ala. 139; Milroy vs. aged, he would be discharged from Quinn, 69 Ind. 406; Mamerow vs. his obligation. But, if the delay National Lead Co., 206 111. 626; 69 were for a long period, and it was N. E. 504. nevertheless clear that the guaran- '» "The guarantor is entitled to tor would have derived no benefit a notice, but cannot defend himself from an earlier notice, the delay 92 THE LAW OP SURETYSHIP A waiver of demand and notice of protest endorsed by tiie gTiELrantor on the back of a promissory note has been held not to be a waiver of notice of nonpayment.^"" A creditor is not required to give notice of default to a guarantor where the guarantor has notice from an indepen- dent source, or where it is his duty under the law, to take no- tice,™". §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 sev- eral according 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 sev- eral liability. The intent of the parties in this respect may generally be determined to be joint if expressed in 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 intent of the obligors in the ma- jority 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 survivor will be liable for the entire amount,*- whereas if the obligation is several, or joint and several, re- course can be had against the estate of the decedent. would not impair his obligation." so Fond-du-Lsw! Harrow Co. vs. Bank vs. Gaylord, 34 Iowa 246; Haskins, 51 WU. 135; » N. W. 15. Lemmert vs. Guthrie Brothers, 69i See also Delaware County Nat. Neb. 499; 95 N. W. 1046; Swisher Bank vs. King, 95 N. Y. S. 954; East vs. Deering, 204 111. 203; 68 N. E. Bridgewater Savings Bank vs. Bates, ' 517; Heeringa vs. Ortlepp, 167 IlL 191 Mass. 110; 77 N. E. 711; Miller App. 586'; Mamerow vs. National vs. Lewiston Nat. Bank, 108 P. 901; Lead Co., 206 111. 626; 69 N. E. 18 Idaho 124; Wood vs. Farmer, 200 304. But see Pfaelzer vs. Kau, 207 Mass. 209; 86 N. E. 297. 111. 116; 69 N. E. 914; Davis vs. si Brady vs. Reynolds, 13 Cal. 32. Wells Fargo & Co., 104 U. S. 159; 82 Johnson vs. Harvey, 84 N. Y. Booth vs. Irving Nat. Excb. Bank, 363. In this case it is held that the 116 Md. 668; 82 Atl. 652. discharge is as to the creditor only, '■"o Lemmert vs. Guthrie Brothers, and the equitable liability for con- 68 Neb. 499; 95 N. W. 1046. tribution between joint obligors is T»6 Mamerow vs. National Lead preserved asainst the estate of the Co., 206 HI. 626; 69 N. E. 604; decedent. New Haven, etc., Co. vs. Graham vs. Middleby, 189 Mass. Hayden, 1 19 Mass. 361 ; Seaman vs. 34)9; 70 N. E. 416. Slater, 18 Fed. Rep. 486; Hawkins £^OM'MMECIAI. aVABAjSTISSf, 9S §70. Guaranty covers interest. A guarantor is liable for interest on the debt from the time of the default by the 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 perform 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 against the guarantor or surety will amount to a demand upon them which will fix liie date from which interest wiU be computed.** vs. Ball's Adm., 18 B. Mon. 816; liurgoyne vs. Ohio Life Ins. & Trust Co., 5 0. S. 586. The estate of the deceased obligor is discharged at common law even though a, joint judgment had been entered against him and the princi- pal before the death of the promisor. Eisley vs. Brown, 67 N. Y. 160. It seems, however, where a judg- ment upon a joint obligation be- comes a lien on the obligor's land in his lifetime that it will be pre- served against his estate. Baskin vs. Huntington, 130 N. Y. 313; 29 N. E. 310. In Ohio the Code now provides that "When two or more persons are indebted in a joint contract, or upon a judgment founded on it, and either of them dies, his estate shall be liable therefor as if the contract had been joint and several, or as if the judgment had been against himself alone." Gen. Code. Sec. 10733. This statute abrogates the common law rule and similar provisions have been enacted by the legislatures of nearly all the States. Some modifications of the common law rule were made bv courts of equity in cases where the deceased joint obligor, participated in the benefits of the contract, such as a joint moker of a promissory note, where the consideration was for the joint use and benefit of the makers. In such cases, the court construed the obligation as joint and several by employing 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 the fiction to cases where one of the joint obligors was not directly bene- fited by the contract, as in the case of a, surety or guarantor. Getty vs. Binsse, 49 N. Y. 385; Wood vs. Fisk, 63 N". Y. 245; Carpenter vs. Broost, 2 Sandf. 537; Weaver vs. 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 ; Sampson Co. vs. Commonwealth, 208 Mass. 372; 94 N. E. 473; Empire State Surety Co. vs. Lindenmeier, 54 Colo. 4^7; 131 Pac. 437. Where the obligation is that of a bail bond in which the amount pay- able is a penalty as distinguished from a debt, interest is not recover- able against the promisor. U. S. vs. Broadhead, 127 U. S. 212; 8 S. Ct. 1101. But see McMuUen vs. Win- field Building & Loan Assoc, 64 94 THE LAW OP SURETYSHIP. A surety whose undertaking obligates him contingently for unliquidated damages is not considered as in default until notice or demand, and interest does not begin to run upon the amount until then. **» §71. Bevocation of guaranty. A contract of guaranty which 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 vsdll act upon it. Such notice by the creditor, even in the form of an acceptance of the guaranty, will not bind the creditor to make advances to the principal, and so long as both parties are noil bound either may withdraw.*" Where the consideration has wholly passed the guaranty' can not be revoked.*' 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- Kan. 298; 67 Pac. 892, where it Co., 201 Pa. 583; 51 Atl. 379; Mc- was held that "While the penalty Donald v. Loewen, 130 S. W. 52; of the bond fixes the limit of liabil- 145 Mo. App. 49; Empire State ity of the surety at the time the Surety Co. vs. Lindenmeier, 54 Colo, liability arises, yet if the principal 497; 131 Pac. 437. or surety fail to discharge that lia- sspotter vs. Gronbeck, 117 III. bility when it matures, interest may 404 ; 7 N. E. 586 ; Offord vs. Davie, be allowed on the amount from the 12 J. Scott (N. S.) 748; Jordan vs. time the liability arises, even if the Dobbins, 122 Mass. 168. amount of recovery shall exceed so Green vs. Young, 8 Me. 14; Ker- the penaltv." nochan vs. Murray, 111 N. Y. 306; 840 United States v. Quinn, 122 18 N. E. 868. Fed. 65; 58 C. C. A. 401; Folz vs. 87 LaRose vs. Logansport Bank, Tradesman's Trust & Savmg Fund 102 Ind. 332; 1 N. E. 805; Hunt vs. COMMEECIAL QUAEANTIBS. 95 ing a position 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 vsrhere 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 Roberts, 45 N. Y. 691; Emery vs. Baltz, 94 N. Y. 408 ; Gay vs. Ward, 67 Conn. 147; 34 Atl. 1025; Singer Mfg. Co. vs. Draughan, 121 N. C. 88; 28 S. E. 136; Metropolitan Washing Machine Co. vs. Morris, 39 Vt. 393; Tisehler vs. Hofheimer, 83 Va. 35; 4 S. E. 370; Coulthart vs. Clementson, 5 Q. B. Div. 412; Mam- erow vs. National Lead Co., 206 111. 626 ; 69 N. E. 504. 88 Bostwick vs. Van Voorhis, 91 N. Y. 353; Reilly vs. Dodge, 131 N. Y 153; 29 N. E. 1011; LeRose vs. Logansport Nat. Bank, 102 Ind. 332; 1 N. E. 805; Vidi vs. United Surety Co., 140 N. Y. S. 612. 89 Jordan vs. Dobbins, 122 Mass. 168; Hvland vs. Habieh, 150 Mass. 112; 22 N. E. 765; Valentine va. Donohoe-Kelly Banking Co., 133 Cal. 191; 65 Pac. 381. Contra — Bradbury vs. Morgan, 1 Hurl. & Colt. 249. See also Broome vs. The United States, 15 How. 143; Fewlass vs. Keeshan, 88 Fed. Rep. 573; McClas- ky vs. Barr, 79 Fed. Reo. 408. Lloyds vs. Harper, 16 CTi. 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 consideration 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 contrarv, that the guarantor mav at any time termi- nate the sTiaran+ee." Pee also Bal- four vs. Grace, 2 Ch. 73« [1902]. 90 Gay vs. Ward, 67 Conn. 147; 34 Atl.' in<'5 Contra — Michigan State Bank vs. I^avenworth Est., 28 Vt. 209. Not only must the creditor have knowledge of the guarantor's deatli, but in order to have this work a revocation of the guaranty, he must have knowledge also of the fact that the deceased was a guarantor. Clark vs. Thaj'er, 105 Mass. 216. 96 THE LAW OP SURETYSHIP. though the contract stipulates that it shall continue until a written notice of revocation is received.*^ 91 Jordan v. Dobbins, 122 Mass. 168; Nat. Eagle Bank vs. Hunt, 16 E. I. 148; 13 Atl. 115. Contra — Knotts vs. Butler, 10 Rich. Eq. (S. C.) 143; Pond vs. U. S. Ill Fed. 989; 49 C. C. A. 582. The death of one of several joint obligors will not, however, operate as a revocation as to the surviving obligors. Breckett vs. Addyman^ 9 Q. B. Div. 783. The obligation in this case 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. 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. Building Contracts. 7'6b. Building Contracts — Changes in the Manner of Payment. 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 delivery of a note for the debt, payable at a later date. Collateral securities maturing at a later date. Extension of timfe 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 as a defense under Negotiable Instrument Codes. Extension of time with reservation of rights against the Surety. Agreements not to sue as distinguished from agreements to 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 discharge of the Surety or Guarantor. Sec. 97. Liability against Surety or Guarantor revived if payment or substituted surety is void. See. 98. Voluntary release of security held by the creditor or upon which the creditor has a lien. ■Sec. S9. 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 Siiretyship debt. See. 102. Whatever releases principal will release the surety or guarantor. See. 103. Same Subject — Release of principal by operation of law. Sec. 104. Same Subject — In cases where the release by operation of law is not the result of the fault or procurement of the Creditor. 97 Sec 72. See. 73. Sec. 74. Sec 75. Sec. 7«. Sec. 76a. Sec 76b. !See. 77. Sec 78. Sec. 79. Sec 80. Sec 8L Sec 82. Sec. 83. Sec. 84. Sec. 86. Sec. 86. Sec. 87. Sec 88. Sec 89. Sec 90. Sec 91. Sec. 91a. Sec 92. Sec 93. Sec. 94. Sec. 95. 98 THE LAW OP SUEETTSHIP. Sec. 105. Suretyship obligations obtained by fraud of the creditor. Sec. 106. 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. See.' 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. Sec. 112. Same Subject — ^Parol evidence competent in certain cases. Sec. 113. Release of promisor by the creditor. Sec. 114. Release of a Co-promisor by the creditor. Sec. 115. Defense of the promisor based upon the failure of the creditor to sue the principal when requested. Sec. 116. Same Subject — The doctrine of Pain vs. Packard. Sec. 117. The principal's right of set-off or counterclaim against the creditor 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 oi 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, and will not discharge the surety." 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 said to result from either one of two reasons: Rankin vs. Tygard, 198 Fed. W. 209; Hamm vs. Fagan, 128 P. 795; 119 C. C. A. 591; New Haven 141; 36 Okl. 223. vs. National Steam Economizer Co., In Holthouse vs. State, 97 N. E. 79 Conn. 482; 65 Atl. 959; Wilkin- ' 130; 49 Ind. App. 178, it was held: son vs. McKinuncl, 36 App. D. C. "The test in determining whether 336; Mudd vs. Shroader, 152 Ky. or not there has been a material 696; 154 S. W. 21. alteration of the instrument is: Has 1 Eoalt vs. Brown, 13 0. S. 364 ; the change or addition injuriously Patterson vs. McNeely, 16 0. S. 348; affected the complaining parties, or Waterman vs. Vose, 43 Me. 504; could the change, under any pos- MeGrath vs. Clark, 56 N. Y. 34; sible circumstances, enlarge the Dewey vs. Reed, 40 Barb. 16; Hart burdens already assumed by appel- vs. Clouser, 30 Ind. 210; Hesself lants?" vs. Johnson, 63 Mich. 623; 30 N. STTBETYSHrP 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 guar^ 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 without 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 ground 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 splely 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 IGO THE LAW OF SUEETYSHIP. twenty-eight cows for one part of the year and thirly-two for the other. This was apparently not a substantial change as the average of thirty remained, but the Court discharged the surety, holding : " The new agreement was binding only on those persons who were parties to it. If it had been intended to bind J by it, he should have been consulted ; he had a right to insist upon a literal performanoe 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." " ^Whitcher vs. James Hall, 5 Barn. & Cr. 269' (1836). "No principle of law is better set- tled at this day, than tiat the under- taking of the surety, being strioti juris he cannot, either at law or in equity, be bound farther or other- loise, 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 advaiit''ge of fe surety. Won haeo m foedera veni, is an an- swer in the mouth of the surety, from which the obligee can never extricate his ease, however inno- cently or by whatever kind inten- tion to all parties, he may have been actuf+ed." Bethune vs. Dozier, 10 Ga. 2,3.5. This mle is somewhat mod'fied in states where the distinction between the individual and the compensated corporate surety prevails. See Young vs. American Bnndinof Oo., 228 Pa. 37'3; 77 At. 623. Stewart, J. _ '"The trend of all our modern decisions, federal and state, is to distinguish between individuals and corporate snretvship where the lat- ter is an undertaking for monev con- sideration hv a cora'oanv p'^artered for the conduct of such business. In the one case the rule of atrictissimi juris prevails, as it always has; with respect to the other, .because it is essentially an insurance against risk, underwritten for a money con- sideration by a corporation adopt- ing such business for its own profit, the courts generally hold tlat such a company can be relieved from its obligation of suretyship only where a departure from the contract is shown to be a, material variance. .... It follows that there is but one way by which it is to be deter- mined whether the variance oonir plained of was a material variance. 'Ihe test is to be found in the answer to the question, whether it substan^ tially increased the chances of the loss insured against. ... . It is not a question whether the variance actually caused the breach' of the bond; but whether it was such a variance as a reasona'bly careful and prudent person undertakin«r the risk would have regarded as substan- tially increasing the chances of loss." See also Warden vs. Eyan. 37 Mo. App. 466; Atlanta National B^nk vs. Douglass, 51 Ga. 205 : Weir Plow Oo. vs. Walmsley, 110 Tnd. 242- 11 N. E. 232; Dev vs. Martin, 78 Va. 1 ; Christian & Gunn vs. Feei. 80 "Va. 369; Powan vs. Sharps' Rifle Mfcr. Co., 33 Conn. 1 : Evre vs. Hol- I'er, Lloyd & Gould, ?i50; St. Louis Brewinw Assn. vs. HaV'Ps. 71 Fed. Pep. 110: Pnrke vs. Whiti; Eiver Co., 110 r-al. 6.^8: 43 Pac. 202- Ches- ter vs. Leonard, 68 Conn, 4<)5: 37 Atl. 307; Plunkett vs. Sewincr Mi- chine Co., 84 Md. ,52fl; 3S Atl. 115; Prior vs, Kiso, 81 Mo, 241; Evans SUEETYSHIP DEFENSES, 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 obligation to pay at the placqj|rst stipulated. Generally this alteration would not in any way increase the risk or change the position 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 grounds 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- wise would operate against the unrestricted use of negotiable paper as a medium of commercial transactions. It is of the highest importance to preserve the integrity of written instru- ments, and one who has the custody of such instruments in- tended for his own benefit is bound to preserve them intact.* vs. Graden, 126 Mo. 72; 28 S. W. 439; Gardner vs. Watson, 76 Tex. 25; 13 S. W. 39; Nichols vs. Palmer, 48 Wis. 110; 4 N. 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 emoloy- ment could he given, from one month to three months, was not material since the risk of the surety was not therebv affected. 3 Pahlman vs. Taylor, 75 111. 629. 4 Wood vs. Steele, 6 Wall. 80, Sicayne, J.: "The grounds of the discharge in such cases are obvious. The agreement is no longer the one into whiclh the defendant entered. Its identity is changed: another is substituted vrithout his consent; and by a party who had no author- ity to consent for him. There is no longer the necess:ary concurrence of minds." Brannum Lumber. Co. vs. Piekard, 71 N. E. 676; SS" Ind. Ai3P. 484. 5 Newman et al. vs. King, 54 O. S. 273; 43 N. E. 683. In this case the payee changed the date, making the note read June 23rd, in place of June 2iind, 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 thev can not agree respecting the mistake and its correct'on. in adeaunte 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 DuVer vs. Franz, 7 Bush. fKy.) 273; McBaven vs. Crisler, 63 Miss. 542. 102 THE LAW OF SURETYSHIP. Pasting to the original contract a memorandum of an In- dependent collateral agreement between the parties, which is intended to clarify one of the provisions in the contract does not discharge the sureties/" §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 maker. 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, since, 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 eases where the 50 United States Glass Co. vs. But see National Exchange Bank Mathews, 80 Fed. 828. See also vs. Lester, 194 N. Y. 461.; 87 N. E. Cambridge Siavings Bank vs. Hyde, 779, where it is held that by virtue 131 Mass. 77. of the negotiable instruments code 6 Jones vs. Bangs, 40 0. S. 139; payment of a note which has been McGrath vs. Clark, 56 N. Y. 34; altered may be enforced by a bona Draper vs. Wood, 112 Mass. 315; fide holder according to its original Bradley vs. Mann, 37 Mich. 1'; Aetna tenor. Nat. Bank vs. Winchester, 43 Conn. 7 It is held that the deliveiy of a 391. bond by the surety to the principal This is the rule even as against establishes the relations of agency bona fide purchasers for value be- between these parties, and the sure- fore maturity. Hill vs. O'NeiU, 101 ty will be bound by any alteration Ga. 832 ; 28 S. E. 996 ; Simons & Oo. made by the principal before deliv^ vs. McDowell; 12'5 Ga. 203; 53 S. ery, not communicated to or known E. 1031. by the obligee, and that having thus Contra — Hackett vs. First Na- held out the principal as his agent, tional Bank of Louisiville, 114 Ky. the surety is estopped from claiming 193 ; 70 S. W. 664 ; Isnard vs. Torres that he has exceeded his authority & Marquez, 10 La. Ann. 103. ias such agent, as against one who SURETYSHIP DEFENSES. 103 paper is not defective, but delivered with all the 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 eases 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 haa relied upon his apparent author- ity, and that the surety should not be permitted to transfer the burdens resulting from misplaced confidence in his agents. King County vs. Ferrv, 5 Wash. 536; 32 Pae. 538. See also Fowler vs. Allen, 32 S. C. 229; 10 S. E. 94?7; National Ex- change Bank vs. Lester, 194 N. Y. 461, »7 N. E. 779. If the contract is delivered to the principal in an incomplete state leaving blanks to be filled in, the defense of alteration is shut out both on the ground of agency and estoppel, even though the principal fill in the banks contrary to in- structions. White vs. Duggan, 140' Mass. 18; 2 N. E. 110. Where the instrument bears upon its face evidence that the principal is exceeding his authority as an agent, the surety may maintain his defense. Fletcher vs. Austin, 11 Vt. 447; Smith vs. United States, 2 Wall. 219 ; State vs. Craig, 58 Iowa 238; 12 N. W. 301; Hessellva. John- son, 63 Mich. 623; 30 N. W. 209; Allen vs. Marney, 65 Ind. 399; Ward vs. Chum, 18 Gratt. 801; Mc- Connon & Co. vs. Evans, 152 Ky. 491; 153 S. W. 773. s The rule stated in the text must be distinguished from those trans- actions in which the surety or guar- antor signs upon conditions not com- municated to the creditor. In such cases, estoppel is properly urged against the defense, for if fraud has been practiced by the principal, in delivering the contract contrary to instructions, and without discloainw to the creditor the limitations under which the promisor signed, the one w!ho made such deception possible by placing the <»ntract 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 purported to be. Such now seems to be the es- tablished rule in the United States. State vs. Peek, 53 Me. 284; Fowler vs. Allen, 32 S. C. 229; 10 S. E. 947; aidball vs. Hally, 48 Cal. 610; Marks vs. First Nat. Bank, 7? Ala. 550; Sitate vs. Potter; 63 Mo. 212; Dair vs. United States, 16 Wall. 1 ; Millett vs. Parker, 2 Met. (Ky.) 608. Post Sec. 108. Contra — People vs. Bostwick, 32 N. Y. 445; Hackett vs. First Na- tional Bank of Louisville, 114 Ky. 193 ; 70 S. W. 664. "One who signs a note as surety in which are writ- ten the words 'five hundred' with spaces before and after them, which the maker fills up by writing 'twen- ty' before and 'fifty' after them, thereby making the note for $2,550, is liable thereon to a bona fide pur- chaser." Isnard vs. Torres & Mar- quez, 10 La. Ann. 103. But spp Belloni vs. Freeborn, 63 N. Y. 389. AlUn. J.: "The ref- eree properly excluded evidence of the secret understanding be- tween the defendants and Buck- nam, not communioated to or known by the obligee, to limit the effect of the instrument if its legal effect could qualify its terms by any agreement or understanding by pa- rol. The possession of the bond by the principal was evidence of au- thority to deliver it, and to author- ize the obligee to act upon it as valid and effectual for all it pur- ported to be. Any parol or other qualification of the liability imputed by the body of the instrument, not made known to the party for whose protection it was designed, could not affect him, and could not be proved against him." 104 THK LAW OF SURETYSHIP, principal or creditor acting for themselves or through author- ized representatives will operate to discharge the surety or guarantor. Any change or mutilation that is the result of ac- cident or the act of a stranger will not effect the liability of the promisor.' The question is somewhat mooted in this country whether the absence of fraudulent intent will render a material altera- tion ineffective when the holder asserts his claim upon the paper as if in its original form. Aside from the question of accident or mistake, it is difBcult to find any distinction in principle between alterations made with intent to defraud and alterations made without such intent, provided in both cases there was an intent to change the contract.^* If the alteration is the result of mistake or accident a court of equity at the suit of the holder would undoubtedly reform the instruments^ a Anderson va. Bellenger, 87 Ala. 334; 6 South. 82; State vs. McGoni- gle, lai Mo. 353; 13 S. W. 758'; Murray vs. Graham, 29 Iowa, 520; Brooks vs. Allen, 62 Ind. 401. 10 In Croswell vs. Labree, 81 Me. 44: 16 Atl. 331, the holder of the paper changed the contract, which was a note payable to order, by add- ing the words "or bearer" and the court, while holding the alteration material announced the view that such alteration was ineffective if made innocently without any intent fo defraud, but that the burden of showing that the alteration was without intent to defraud was on tlie holder. In Toomer vs. Rutland, 57 Ala. 379, the holder received a note with the place of payment left blank and filled in this blank by naming a banik as the place of payment. Held "The motive of the creditor in mak- ing the alteration may not be fraud- ulent — as in the present cise, mala fides may not be imputable to him; yet, as the alteration chanees the legal identity and effect of the in- strument, the debtor mav well say it is not the contract into which he entered, and he is not. therefore, bound by it, and that the identity and lepal effect of the contract into which he did enter, lias been volun- tarily destroyed by the creditor." See also Biorelow vs. Stilphon 35 Vt. 521; Savings Bank vs. Shaffer, 9 Neb. 1; 1 N. W. 980; Taylor vs. Taylor, 12 Lea (Tenn.), 714; New- man va. King, 54 O. S. 273; 43 N. E. 683. In Booth vs. Powers, 56 N. Y. 22, the question; of frauduleat intent is held of no moment in determining the effect of the alteration on the validity of the instrument. But if the holder can show that the alterar tion was made innocently to correct a mistake or to conform to the real intent of the parties, he may resort to an action upon, the original debt providing the execution of the note did not extinguish the debt; where- as, if the alteration was frauduleut- ly made the holder forfeits the debt altogether. To the same effect, see Clough vs. Seay, 49 Iowa 111; Clute vs. Small, 17 Wend. 238; Matteson vs. Ells- worth, 33 Wis. 488 ; Hunt vs. Gray, 35 N. J. L. 227. Of course, the promisor in surety- ship is not in any way affecteid by this modification, giving the creditor a right of action against the princi- pal on the original debt where the alterations were innocently made. - The liability against the promisor is inseparably connected with the writen instrument, which is vitiat- ed by the alteration discharging the promisor. 11 Chadwick vs. Eastman, 53 Me. 16. SUEETYSHIP DBfFETfSES. 105 Such a procedure is mo)?e in accord with the policy of our law than for the holder to make the alteration and then rely upon the court to ratify his. act when an action is brought. An im- material alteration, although made with fraudulent intent, may be disregarded.^* §75. Alteration of principal contract by the addition of new parties. The addition of a new party as principal maker is a material alteration of the principal contract and the promisor not con- senting is discharged. This is but a direct and simple appli- cation of the rule that the promisor is not liable in a substi- tuted contract. The addition of a new name as maker might change a several contract to a joint and several, but whether the added party resulted in this or some other change in the contract, the instnunent would operate differently in respect to all the parties from the moment, the name was added, and circumstances might even be conceived which would make the addition of a new party prejudicial to the surety or guarantor ; generally, however, such alteration would be beneficial to the promisor. The decided weight of authority is that the addition of a new party constitutes such material alteration as will discharge the surety or guarantor.^* But see Kountz vs. Kennedy, 63 12; Shipp'e Adm. vs. Suggett's Pa. 187. In this case the indorser Adm., 9 B. Mon. 5; Hall's Admx. vs. was sued upon a note from which McHenry, 19 Iowa 521; Hamiltan the words "with interest" had been vs. Hooper, 46 Iowa 516; Gardiner " innocently " erased with chemicals vs. Walsh, 5 El. & Bl. 83. by the holder and the court ex- In Brownell vs. Winnie, 29 N. Y. pressed the view that since there 400, it was held that the addition was no fraudulent tampering with of a new name as maker upon a the note, and the alteration was not note upon which there is but one prejudicial to the indorser that the maker does not change in any way note should not be avoided. Shars- the obligation or relations of the wood, J., dissenting. original maker, arid that he still re- i^Moyevs. Herndon, 30 Miss. 110. mains severally liable for the entire Contra — ^Heard vs. Tappan & Mer- debt and hence as to him this is ritt, 121 Oa. 437; 49 S. E. 263. not a material alteration. 13 Wallace vs. Jewell, 21 O. S. The distinction, however, between 163 ; Chadwick vs. Eastman, 58 Me. this case and the case where a new 106 THE LAW OF SURETYSHIP. The addition of a new paxty as sui>ety or guarantor is not a change of the principal contract. The undertaking of the new surety is merely collateral to the main contract and not incorporated into it and the. principal remains in exactly the same relation to the creditor as before. No question either of increase of risk or substituted con- tract is involved in such a case.^* The erasure by the obligee of a surety's name on a bond releases all sureties who sign after the surety whose name was erased and before the erasure.^*" §76. Alteration of principal contract by a change in the duties of the principal. A surety upon a contract of employment, or upon a bond for the faithful performance of duty in a position of trust, or t» secure the performance of any specified duty by the principal, party is added to a joint and several note is not apparent, for if the original parties- sustain no contract- ual relations with the new parties in the one case they would not in the other. In either ease, the new party is either (a) liable with the original parties as joint makers, or ( b ) liable for their debt as guaran- tors. Under the first supposition ■contractual relations are established which did not before exist, and which justify the application of the rule for the discharge of the surety, if the question of increase of risk is to be left out of consideration. Under the second supposition, the original makers remain liable for the entire amount without changing 'in any respect their relations to the creditors by reason of the existence of the new collateral contract of suretyship, and these results would eeem to be unaffected by the fact as to whether the main contract was executed by a sole maker or by joint makers. 1* Mersman vs. Werges, 112 U. S. 138; 5 S. Ct. 65; MeOaughey vs. Smith, 27 N. Y. 39; Montgomery Railroad vs. Hurst, 9 Ala. 513; Mil- ler vs. Finley , 26 Mich. 249; Stone vs. White, 8 Gray 589; Ptate vs. I>unn, ri La. An. 549; Ex Purte Yates, 2 DeG. & J. 191; Standard Underground Cable Co. vs. Stone, 54 N. Y. S. 383 ; Holthouse vs. State, 97 N. E. Ii30; 149 Ind. App. 178. Contra — Berryman vs. Manker, 56 Iowa 150; 9 N. W. 103; Bank of Limestone Bank vs. Peaick, 2 T. B. Mon. (Ky.) 98; M. Eumley Co. vs. Wilcher & Co., 23 Ky. Law Eep. 1745 ; 66 S. W. 7 ; State vs. Paxton, 65 Neb. 110; 90 N. W. 9»3; Fry vs. Bannon Sewer Pipe Co., 101 N. E. 10; 179 N. E. 309. Some distinction seems to be made where the additional surety signs before delivery of the instrument, and while it is in the hands of the principal. The original surety is held to be estopped from claiming his discharge because }ie intrusted the instrument to the principal, thereby giving liim implies author- ity to get additional parties if the same became necesary. Keith vs. Goodwin, 31 Vt. 268. The further reason is sometimes urged that if the new signature is made before delivery to the payee iji does not amount to an alteration because until after delivery there is no contract. Ward vs. Hackett, 30 Minn. 150; 14 N. W. 578; Graham vs. Rush, 73 Iowa, 451'; 35 N. W. 518. iiaHilliboe vs. Warner, 118 N. W. 1047; 17 N. D. 594. But se€ Hess vs. SchnafTner, 139 S. W. 1024. SURETYSHIP DEFENSES. 107 will not be bound for any default under a modified form of such contract.*** If the parties to the main contract by agreement substi- tute other duties for the principal, although the general char- acter of the employment is not changed, the sureties can not be held for a breach of these added duties. Where the contract between employer and employe requires the employe to render reports of business done each week, a waiver by the employer of the weekly settlements will discharge the sureties on the bond of the employe.**" Thus a surety upon the bond of a bookkeeper in a bank will not be liable for defaults committed by the principal when pro- moted to the position of receiving teller.*' Again, where a lease provided that the premises shall be given up at the end of the term in the same condition as when received. The guarantor was held to be discharged by a con- temporaneous agreement between the lessee and lessor that the latter should remodel the building before taking possession. ** A guaranty of a contract of sale of merchandise upon a credit of six months will not hold good for a sale made on credit of less or more than six months.*' i** Pott & Co. vs. Schmucker, 84 is National Mechanics Banking Md. 535; 36 Atl. 592; Orleans & J. Assn. vs. Oonkling, 90 N. Y. 11«; Ky. Ck). vs. International Const. Co., Kellogg vs. Scott, 58 N. J. Eq. 344; 113 La. 409; 37 So. 10'; Despres vs. ^4 Atl. 190; Kellogg vs. Scott, 58 Folz, 134 111. App. Ill; Clidaliy ^^ J" ^- 344; 4 Atl. 190. Packing Co. vs. Shepard, 37 Tex Civ. ^"^ '^^ Hibernia Savings Bank « 1 oo o w Toi! T^- 1,1, '*'^- McGinnis, 9 Mo. App. 578i App. 1; 82 S. W. 786; Kirscbbaum , ., x. ,, ,■, ^ „ , where it was held that where a & Co. vs. Blair, 98 Va. 35; 34 8. E. j,^^ teller is made cashier, that he 805; City of New York vs. Clark. continues to n^t as teller does not 82 N. Y. S. 855; Chandler Lumber increase the risk of the sureties on Co. vs. Radke, 136 Wis. 496; 118 his bond as cashier, and will not N. W. 185; Germania Fire Ins. Co. discharge them." vs. Lauge, 193 Mass. 67; 78 N. E. i« Parrar vs. Kramer, 5 Mo. App. 746. 167. See also Green vs. Boyd, 13 Pa "" Singer Mfg. Co. vs. Boyette, 74 Sup. Ct. 651. Ark. 600; 86 S. W. 673 ; Morrison vs. i^ Leeds vs. Dunn, 10 N. Y. 469; Arona, 65 Minn. 321; 68 N. W. 33; Henderson vs. Marvin, 31 Barb. 297- Fidelity Mutual Life Assoc, vs. Stewart vs. Ranney, 26 How. Pr. Dewey, 83 Minn. 380; 86 N. W. 429. 279; 68 O. S. 407; 67 N. E. 710. lOTflS THE LAW OF SURETYSHIP. A change in the character of the merchandise guarantied Avill discharge the guarantor.^* An alteration of the principal contract without the consent of the surety discharges the surety only for defaults arising after the alteration or change is made.^"* "Where new duties are given public officers by subsequent legislation the sureties upon the bond of the officer have been held to be discharged.^" The fact that a portion of an order of goods, proved defective in quality and was returned by the purchaser without the consent of a guarantor will not operate as a change in the contract of purchase so as to relieve the guarantor of his obligation to pay for that which was received in good order.^'" §76a. Building contracts. The rule that an alteration of the principal contract releases the surety has been relaxed in the case of building contracts by the application of a construction peculiar to contracts of 18 Grant -vs. Smith, 46 N. Y. 93. not such a material alteration b» The guarantied contract was for a would discharge the surety upon steam engine and two boilers and it the agent's bond, was modified so as to require the 'Contra — Good Eoads Machinery- delivery of an engine and three boil- Co. vs. Moore, 58 N. E. 540 ; 25 Ind. crs. App. 479. In Evans vs. Lawton, 34 Fed. Eep. i so. Lake vs. Thomas, 84 Md. 608; 233, a contract of agency provided 36 Atl. 437 ; White Eiver, L. & W. that the agent was to sell only for H. E. vs. Star R. & L. Co., 77 Ark. 'cash. Evidence that the employer 128; i"! R. VV. 82.^. had knowledge of the fact that the i» Miller vs. Stewart, 9 Wheat agent was selling on credit, and in 680; Denio vs. State, 60 Miss. 949; some cases consented to it, was held Bensinger vs. Wren, 100 Pa, 500; to be a material alteration which State of Missouri vs. Holman, 96 discharged the guarantor. Mo. App. 193; 68 S. W. 963. But see Fond du Lac Harrow Co. i"" Groendyke vs. Musgrave. 123 vs. Bowles, 54 Wis. 425; 11 N. W. Iowa 535; 90 N. W. 130. 795, where it is held that an en- ^o Geo. A. Hormel & Co. vs. Amer- largenient of the territory in which ican Bonding Co., 112 Minn. 288; 128 the agent was permitted to sell was N. W. IS ; Brandrup vs. Brazier, SURBTTYSHIP DEFENSES. 107& If alterations are slight and trivial, the surety will not be released, even though not consenting, such changes being deemed incident to any building operation and contemplated by the parties,^"" and by extension of this principle, changes which involve no prejudice or loss to the surety do not release the non-consenting surety. Thus where the owner agreed to insure the building under construction for the benefit of himself and the contractor, as their interest might appear, and without the knowledge or consent of the surety, placed the insurance for the benefit of a mortgagee, it was held, no fire having occurred, that the surety was not released.^'"' So also, where there has been a change of location of the building from one lot to another, and not involving additional expense to the contractor. -"" These relaxations of the rule are, however, limited to those cases in which the surety company is compensated and engaged in the business of suretyship. This distinction has been stated thus: "The rule that where changes in a building contract made without the consent of the surety of the contractor affect the identity of the contract, the surety is discharged, though tie changes do not increase the risk of the surety, does not apply where the surety is engaged in the business for hire, and in 111 Minn. 376; 127 N. W. 424; Worm, 164 Ind. 7; 72 N. E. 8S2; Young vs. American Bonding C5o., Chicago vs. Agnew, 264 III. 288. 228 Pa. 373. , aoc Segari vs. Mazzei, 116 La. 2»oHohn vs. Shideler, 164 Ind. 1026; 41 Southern 2*5. See also 242; 72 N. E. 575; Zunzweiler vs. Eunzweiler vs. Lehman, 70 N. Y. Lehman, 70 N. Y. S. 230; Stephens g. 290; Fei^s Palls vs. lUinoU vs. Elver, 101 Wis. 392; 77 N. W. ^ ^.,^^ ^^ j^^.^^ ^28 N. 737; FuUerton Lumber Co. vs. _,.„._ , t> . ~ , -. ,, , „m nu I W. 820 Brandrup vs. Brazier, Gates, 89 Mo. Apps. 201; Oooke vs. ,,, ,,. „„ ,^ ^^ „ TT7T..X ^ o V 1 T^- i •,<> TT HI Mmu. 376; 127 N. W. 424: White Com. School Dist., 33 Ky. ' ■ i'. >». t^, LawEep. 926; Fransioli vs. Thomp- Fransioli vs. Thompson, 55 Wash, son, 55 Wash., 259; 104 P. 278; Hin- 259; 104 P. 278; Prescott National ' ton vg. Stanton, 165 S. W. 209. Bank vs. Head, 11 Ariz. 213; 90 P. 20!>Hohn vs. Shideler, 164 Ind. 328. 242; 72 N. E. 575; Schreiber vs. 107c THE LiAW OF SUEETYSHIP. such case mere immaterial variations, or unsubstantial devia- tions which do not prejudice the right of the surety, do not discharge it."""* The weight of authority supports the view that any change in the principal contract discharges the surety, whether the risk is increased or not.^°* If the builder's contract provides that changes may be made in the plans and specifications, the surety is held to have consented in advance to such alterations;^"' this assent by the surety is applied, however, only as to minor changes and do not include changes which greatly enlarge the responsibility of the contract. 2ofiRule vs. Anderson, 160 Mo. App. 347; 142 S. W. 358. See also Boppart vs. Surety Co., 140 Mo. App. 675; 126 S. W. 768; Long vs. Amer- ican Surety Co., 23 K D. 492; 137 N. W. 41; James Black Masonry & Contracting Co. vs. National Surety 'Co., 61 Wash. 471; 112 P. 517. 2oe Beers vs. Wolf, 116 Mo. 179; 22 S. W. 620; O'Neal vs. Kelley, 65 Ark. 550; 47 S. W. 400; Alcatraz Masonic Aasn. vs. U. S. F. & G. Co., 3 Cal. App. 338; »5 P. 156; Ful- lerton Lumber Co. vs. Gates, 89 Mo. App. 201; Bagwell vs. American Surety Co., 102 Mo. App. 707; 77 S. W. 327; Oowdery vs. Hahn, 105 Wis. 455; 81 N. W. 882; Eeissans vs. Whites, 128 Mo. App. 135; 106 S. W. 603; Luling Oil & Mfg. Co. vs. Gohmert, 50 Tex. Civ. App. 606; 110 S. W. 772; Utterson vs. Elmore, 154 Mo. App. 646; Trustees of 7th Baptist Church vs. Andrew & Thom- as, 115 Md. 535; 81 Atl. 1; Wood- ruff vs. Stehultz, 155 Mich. 11; 118 N. W. 579; Haigler vs. Adams, 5 Ga. App. 637; 63 S. B, 715 ; Wolf vs. Aetna Indemnity Co., 163 Oal. 5fl7; 126 P. 470; United States vs. Freel, 186 U. S. 309; Ziegler vis. Hallahan, 131 Fed. 210. But see Guaranty Co. vs. Pressed Brick Gq., 191 U. S. 416. In Hubbard vs. BeiUy, 51 Ind. App. 19; 9« N. E. 8»6, the Court said the change in the contract would discharge the surety, even though it was beneficial to the sure- ty. ^of Drumheller vs. American Sure- ty Co., 30 Wash. 530; 71 P. 25; Daly vs. Busk Tunnel By. Co., 129 Fed. 513; United States vs. Walsh, 115 Fed. 697; Hedrick vs. Eobbins, 30 Ind. App. 595; ©6 N. E. 704; Lumber Co. vs. National Surety Co., 124 Ta. 617: 100 N. W. 556; Mc- Lennan vs. Wellington, 48 Kas. 756 ; 30 P. 183 ; Hayden vs. Cook, 34 Neb. 670; 52 N. W. 565; Lumber Co. vs. Gillard, 136 Cal. 55; 68 P. 57®; Enterprise Hotel Co. vs. Book, 48 Oreg. 58; 86 P. 333; Blauvelt -vs. Kemon, 196 Pa. 128; 46- Atl. 416; StJKETYSHIP DEFENSES. 107d Thus where the contract was for a one-story building, and the plans were changed to a two-story building, it was held that the surety was released.'""' Alterations made solely for the benefit of the owner and not affecting the risk of the surety may generally be made without the consent of the surety.""* If on default of the contractor the owner takes over the work and completes it, the surety can not be held for the cost of completion in a case where the owner makes a substantially different contract for the completion.""* Changes made in the principal contract will not release the surety from liability to materialmen and labor where the bond is given for their benefit, even though the changes are of such a character as to release the surety as against the owner.""' Fhila. vs. Stewart, 201 Pa. 526; «1 Atl. 348; Cowks vs. U. S. F. & G. Co., 32 Wash. 120; 72 P. 1032; Kretachmar vs. Bruss, 108 WisL 396; 84 N. W. 420; American Surety Oo. vs. San Antonio Trust Co., 98 S. W. 387; Fidelity & Deposit Co. vs. Bobertson, 136 Ala. 379; 34 Southern 933 ; MeMuUen vs. United States, 222 U. S. 460; Amerioan Surety Co. vs. Sicott, 18 Okl. 264; 90 P. 7; Bartlett & Kling vs. III. Surety Co., 142 Iowa 538; 119 N. W. 729. 2»ff Miller- Jones Furniture Co. vs. IV)rt Smith Ice Co., 6 Ark. 287; 50 S. W. 508. See also Barrett-Hicks Co. vs. Glas, 9 Cal. App. 491; 99 P. 856; Swasey vs. Doyle, 88 Mo. App. 536; Bums vs. Fidelity & De- posit Co., 96 Mo. App. 467; 70 S. W. 518; McCJonnell vs. Poor, 113 la. 133; 84 N. W. 968; Erfurth vs. Stevenson, 71 Ark. 190; 72 S. W. 49; House vs. Surety Co., 21 Tex. Civ. App. 590; 54 S. W. 303. 201 American Surety Co. vs. San Antonio Trust Co., 98 S. W. 387. 20iU. S. F. & G. Co. vs. United States, 194 Fed. 611. 20^' United States ex rel. Anniston Pipe & Fdy. Co. vs. National Surety Co., 92 Fed. 549. In the case last cited the Court said: "The bond from a contractor for public work is intended to per- form a double function; first, to se- cure to the Government the faithful performance of the contract, and second, to protect third persons from whom the contractor may obtain labor or materials in the prosecu- tion of work. In its second aspect the bond, by virtue of the statute, contains a separate and distinct agreement between the obligors and such third persons as to which the agency of the Government ceases when the bond ia given and approved and subsequent changes in the con- tract or s.peoifications agreed upon between the governmenit and the 107e THE LAW OF SUKBTYSHIP. §76b. Building contracts — changes in the manner of payment. The stipulations in a building contract, that the owner will make payments as the work progresses, in accordance with certificates of the architect, but will retain a certain percentage of the amount earned, until the work is completed, are by the weight of authority considered to be covenants for the benefit of the surety, and a violation of these stipulations by premature payments deemed a material alteration of the contract, whereby the surety is released. "The nile rests upon two reasons — ^the one is that such a defense deprives the surety of the security which the owner or principal contractor has agreed to hold for his benefit, and the loss of the inducement which otherwise would have operated on the contractor's mind, to induce him to finish the work in accordance with the terms of his obligation."^"* It has been held, however, that the condition in respect to premature payments is for the benefit of the owner only and contractor, though without the -o^ .Tas. Black Masonry & Oon- knowledge or consent of a surety, struction Co. vs. National Surety where the general nature of the Co., 61 Wast. 471; 112 P. 517; work and materials remains the County of Glenn vs. Jones, 14'6 Cal. same, will not release the surety 518; 80 P. 696; First National Bank from liability to persons who supply vs. Fidelity & Deposit Co., 145 Ala. labor or materials thereunder." 335; 40 Southern 415; Calvert vs. Chaffee vs. U. S. F. & G. Co., 128 Ix)ndon Dock Co., 2 Keen (Eng. Fed. 918; Dewey vs. State, 91 Ind. Chanc.) 639; Fidelity & Deposit Co. 1'73; Conn vs. State, 125 Ind. 514; vs. Agnew, 152 Fed. 955; O'Neill vs. 25 N. E. 443; United States ex rel. Title Guaranty & Trust Co., 191 Snyder vs. Hazard, 53 App. Div. Fed. 570 ; Long vs. American Surety 410; Kaufman vs. 'Cooper, 46 N«b. Co., 23 N. D. 492; 137 N. W. 41; 644; 65 N. W. 796; King vs. Mur- McKnight vs. Lange Mfg. Co., 155 phy, 49 Neb. 670; 68 N. W. 1029; S. W. 977; Kunz vs. Boll, MO Wis. Lumber Co. vs. Petei'son, 124 la. 69; 121 N. W. 601; Village of Ches- 550; 100 N. W. 530; U. S. F. & G. ter vs. Leonard, 68 'Conn. 495; 37 Co. vs. Omaha Building & Construe- Atl. .3i97 ; Queal & Co. vs. Stradley, tion Co., 116 Fed. 145; U. S. F. & 117 la. 748; 90 N. W. 588; McNally G. Co. vs. American Blower Co., 41 vs. Mercantile Trust Co., 204 Pa. Ind. App. 620; 84 N. E. S5S. 596; 54 Atl. 360. SURETYSHIP DEFENSES. 107/ that the condition may be waived by the owner without releas- ing the surety.^"' In other cases it is held that the surety is discharged merely to the extent that he has been prejudiced by the change in the manner of payment.^"™ "Where the building contract provided that bills for labor and materials should be paid directly to the persons holding the claims, and the owner paid the contractor, it was held that the surety was discharged.-"" Where the form of certificate to be used by the architect is not fixed by the contract, a statement to the effect that a certain sum is now due will justify payment by the owner.""" A loan by the owner to the contractor, with an agreement that the owner might apply toward the payment of the loan the sums thereafter to become due under the contract is held to be an independent transaction, and not a payment, and so not in violation of the terms of the building contract as to time of payment, and therefore not release the surety.""*" 21' Fidelity & Deposit Co. vs. Eob- But see Glelm vs. Jones, 146 Cal. ertson, 136 Ala. 379; 34 Southern 518; 80 P. 695; Monro vs. National 933; First Presbyterian CJmrch vs. fiHirety Oo., 47 Wash. 488; 92 P. Housel, 115 111. App. 230; Eureka 290; Marree vs. Ingle, 69 Ark. 126; Stone Co. vs. First Christian Church, 61 S. W. 369. 86 Ark. 212; liO' S. W. ]04'2; City sonQuthrie vs. Carpenter, 162 Ind. of New Haven vs. National Steam 417; 70 N. E. 486; Tinsley vs. Kem- Eeonomizcr, 79 Conn. 482; 65 Atl: ery, 111 Mo. App. 87; 84 S. W. 993. 9i59; McKcnzie vs.. Barrett, 43 Tex. 2»"|Snaith vs. Smith, 27 N. Y. S. •Civ. App. 451; 98 S. W. 229. 379; Wyekoflf vs. Meyers, 44 N. Y. But see First National Bank vs. 143; Finney vs. Condon, 86 111. 80; Fidelity k Deposit 'Co., 145 Ala. Lumber Co. vs. Peterson, 124 la. 335; 40 Southern 415. 59&; 100 N. W. 550. 2(im Smith vs. Molieson, 148 N. Y. ^op Museum of Fine Arts vs. 241; 42 N. E. e^®; Hand Mfg. Co. American Bonding Co., 211 Mass. vs. Marks, 36 Oreg. S23; 50 P. 549; 124; St. John's College vs. Aetna Wehrung vs. Denham, 42 Oreg. 386 ; Indemnity -Co., 201 -N. Y. 335; 94 71 P. 133; Leghorn vs. Nydell, 39 N. E. 994; Bateman Bros. vs. Mapel, Wash. 17; 80 P. 833; Mayes vs. 145 Cal. 241; 78 P. 734; Fidelity Lane, 116 Ky. 366; 76 S. W. 399; & Deposit Co. vs. Agnew, 152 Fed. Bateman Bros. vs. Maf)el, 145 Oal. 955. 311; 78 P. 734. 108 THE LAW OP SURETYSHIP. §77. Variation in amount of advancements under limited guaranty — Effect upon guarantor. Where a valid contract subsists obligating the creditor to make advances to a definite amount any alteration of this con- tract reducing or enlarging the amount to be advanced will dis- charge the guarantor.''^ This is a distinct substitution of a new contract; further- more, an increase or a decrease of the stipulated amount might be a detriment to the principal, and unless the promisor assents to this change he ought not to be bound. Some confusion arises by failing to distinguish between cases where the subject of the guaranty is a subsisting and binding contract between the principal and creditor to maJre certain advances, and when the transaction is merely a pro- posal to guarantee optional advances up to a certain amount. In the latter case the guarantor will be liable for such ad- vances as are made relying upon his guaranty whether the amount be equal to or less than the sum named in the letter of credit, and his liability within the limit named will be un- affected by the fact that the creditor may have advanced a greater sum.^^ The mere failure of the parties to perform the contract, such as a refusal by the principal to receive all the advancements agreed upon, will not amount to an alteration of the contract. Thus, where the guaranty was for £400 upon condition that credit should be extended for that amount. The principal bought goods only to the extent of £300. The guarantor when 21 Eyan vs. Shawneetown, 14 111. But see Bank of New Zealand vs. 20; Watrissvs. Pierce, 32N. H. 560. Wilson, 5 N. Z. L. E. S. C. 215, In Johnston vs. May, 76 Ind. 293, where the advancements were in ex- the amount due on a promissory cess of the limit of the guaranty, note was changed by the endorse- held not to invalidate the guaranty, ment of a credit due in another 22 Clagctt vs. Salmon, 5 Gill & transaction; this was held to be a Johns. (Md.) 314; Sheppard vs. material alteration and that the Daniel Miller Oo., 7 Ga. App. 760; surety was discharged. 68 S. E. 451. SURETY DEFENSES. 109 sued claimed his discharge on the ground that credit had not been extended to the' amount stipulated. This was held, how- ever, not to be an alteration of the contract, and that a failure to perform the contract by the principal should not prejudice the creditor.^^ Restrictive conditions in the contract of guaranty must oe complied with or the guarantor will be discharged. When the guaranty is upon condition that the creditor make advance- ments not exceeding a certain amount, credit iu excess of this amount will wholly discharge the guarantor.^* §78. Change of parties. If the contractual relation of principal and creditor are changed by the substitution of new parties in place of those originally contracting, either by the original party assigning his interest in the contract to another in whole or in part, or by associating new parties by partnership agreements, the surety or guarantor will be discharged. Thus, A contracts to sell merchandise to B and C guarantees the payment. If A as- signs his contract to another the guarantor will not be liable to the assignee for the purchaser's default, neither will the guarantor be liable for the default of one to whom B should as- sign his contract of purchase. In both cases the guarantor is 23 Lindsay vs. Parkinson, 5 Irish itor failed to keep the property in- Law Rep. 124. sured which was subject to the con- A breach of the contract by the tract. The surety was held wholly creditor will discharge the surety; discharged and not merely to the while this is not strictly an altera- extent of his loss by reason of the taon of the contract, yet the effect omission to insure, upon the surety is the same, and if See also Pioneer Co. vs. Freeburg, the beneficiary of the suretyship fail 59 Minn. 230; 61 N. W. 25; Carson to keep his engagement he should be Assn. vs. Miller, 16 Nev. 327. estopped from charging the surety 24 Bloomington Min. Co. vs. with default. S^arles, 63 N. J. L. 47; 42 Atl. 840; Watts vs. Shuttleworth, 5 Hurl. Kimball vs. Baker, 62 Wis. 526; 22 & Nor. 295. In this case, the cred- N. W. 730. 110 THE LAW OF SUEETTSHIP. discharged for the same reason, namely, because there is an alteration of the principal contract by the substitution of new names. In neither case has the guarantor agreed to assume suretyship relations with these new parties. The rule that a special suretyship contract can not be assigned rests upon the proposition that such assignment would be a material altera- tion,"" and the same reason will discharge the surety where the contractual position of the parties to the main contract is changed by the formation or dissolution of partnership rela- tions on the part of either party to the contract^* §79. Alterations beneficial to the surety or guarantor. The claim is frequently urged that the general rule whereby the promisor is disdiarged by the alteration of the main con- tract without his assent, should yield in those cases where the changes are beneficial to the surety or guarantor. That to in- sist upon its application in such cases is a mere technicality without any equity in its favor and not within the spirit of the adjudicated rules in suretyship.'" 2= Ante Sec. 52. The rule stated vs. Lloyd'a Admrs., 18 O. S. 353; in the text can not apply where the Manufacturers' Bank vs. Cole^ 39 suretyship is upon a negotiable in- Me. 188. strument executed in anticipation of See also Greemwillevs. Ormand, 51 advancements by a. particular cred- S. C. 58; 28 S. E. 50. In this case itor. Such creditor may assign his the original payee declined to dis- contract interest in the note, and count the note and indorsed it to tiie surety or guarantor upon the another without recourse. The sure- paper will be liable to the substi- ty was held to be discharged, tuted party for the adivancements. Bycrs vs. Plickman Grain Co., 112 Lyman vs. Sherwood, 20 Vt. 42; Iowa 451; 84 N. W. 500; Mathews Cross vs. Eowe, 22 N. H. 77. vs. Carman, 110 Mich. 569; 63 N. A promisor in suretyshipy how- W. 243 ; Friendly vs. National Sure- ever, has the undoubted right to ee- ty Co., 8i9 P. 177; 46 Wash. 71; lect his own creditor, and to insist School Dist. No. 6 vs. Smith, 127 that there be no change of creditors P. 797 ; 63 Or. 586. without his assent in all cases except But see The Springfield Light Co. where the rules of negotiability pro- vs. Hobart, 98 Mo. App. 227; 68 tect parties who make advances in S. W. 942. good faith. Notice to the party mak- ^s Ante Sees. 53, 54. ing advances that he is not the one 27 Cambridge Savings Bank vs. to whom the surety expected to be Hyde, 131 Mass. 77. bound will prevent recovery against Morton, J.: "The surety is the surety. Eussell vs. Ballard. 16 discharged because the act of B. Mon. (Ky.) 201; Prescott vs. the creditor is injurious to him Brinsley, 6 Cush. 233; Clinton Bank and is inconsistent with the duty vs. Ayres, 16 O. 283 ; Knox Co. Bank which the creditor owes to Mm. SURETYSHIP DEFENSES. Ill This view has been generally rejected upon the ground that a surety should not be compelled to adopt contracts merely because they can be shown to be beneficial to him, and upon the ground of public policy which requires that the integrity of written instruments be preserved, and that the one for whose benefit such instruments are intended, and who has the cus- tody of them, must be charged in strictness with their preserva- tion.^' Where the act of which the surety complains is a new agreement changing some of the terms of the original agreement, we think the true rule is, that, if such new agree- ment is or may be injurious to the surety, or if it amounts to a substi- tution of the new agreement for the old, so as to discharge and put an end to the latter, the surety is dis- charged. But if the change in the original contract from its nature is beneficial to the surety, or if it is self-evident that it cannot prejudice bim, the surety is not discharged." In this case, the rate of interest was reduced from 7% to 6% per cent, by a stipulation written on the back of the note. Some distinction seems to be made in this case and others between alterations in the language of the original contract, and the agreements to change which are disconnected from the original contract, leaving the language of the latter intact. Wilkinson vs. McKimmie, 3'6 App. D. C. 336; Ganev vs. Hohlman, 145 111. App. 467; "New York Life Ins. Co. vs. Casey, 178 N. Y. 381, 391; 70 N. E. 916, 919. See also Ullman Realty Co. vs. Holander, 123 N. Y. S. 772. The court said: "While it is un- questionably the law in this state, where a contract is altered or changed, that the surety is dis- charged, and that the courts will nob make inquiry to ascertain if the change be to his benefit or his in- jury, still I am of the opinion that the doctrine as laid down in the Massachusetts case ( Cambridge Sav- ings Bank vs. Hyde, supra), is the logical, rational and prouer one, and should be aTJplied in this state to eases where, if without inquiry it is self-evident and upon a mere state- ment of the fact, that benefit must necessarily and without question, re- sult to the guarantor, that he is not released or discharged from his obligation. Law is common sense, and if one guarantee the terms and provisions of a lease of another at $5,000 a year for five years, and voluntarily or by agreement the rent is reduced to $2,000 a year, without any further covenants or conditions in any rrapect changing the remaining provisions of the lease, would it not be unreasonable, and I may say almost irrational, to hold that the surety is discharged because he is necessarily benefited by a release of a contingent liability to the extent of $15,000 for the full term? I am of the opinion, and X so decide this case, that w'here an agreement is altered or changed, and the change is made without the knowledge or consent of the surety or guarantor, but where it appears and it is self-evident, without the necessity of any inquiry, that the alteration cannot be otherwise than beneficial to the surety, he is not discharged from liability." See also Dodd vs. Vucovich et al., 38 Mont. 188 ; 99 Pac. 296. 28 Calvert vs. Hie London Dock Co., 2 Keen 638. "The argument, howeiver, that the advances beyond the stipulations of the contract, were calculated to be benficial to the sureties, can be of no avail. In almost every case where the surety has been released, either in conse- quence of time being given to the principal debtor, or of a compro^ mise being made with him, it has been contended, that what was done was beneficial to the surety — and the answer has always been, that the surety himself was the proper judge of that — and that no arrangement, different from that contained in hia contract, is to be foixjed uoon him." See also Polak vs. Everett, 1 Q. B. Di-v. 676, Mellor, J.: "The surety ia entitled not to be affected Iby any- 112 THE IjAW of suretyship. The customary clause in building contracts reserving a per- centage of the_ contract price to be paid when the work is com- pleted is a stipulation which can not be waived without dis- charging the surety, and it is no answer to this defense that such advancements in excess of the requirements of the con- tract were beneficial to the principal, by enabling him to pro- ceed with the work, and so beneficial to the surety.^' In cases where the contract of the surety incorporated by reference the main contract, or where it is shown the surety contracts with knowledge of the terms of the main contract, which is that neither one is material or substantial. I think the surety is not released. The doctrine of the release of suretyship is carried far enough, and to the verge of sense, and 1 shall not be one to carry it any further." See also Reese vs. United States, 9 Wall. 13, Field, J. (p. 21) : "Any change in the contract, on, which they are sureties, made by the prin- cipal parties to it without tiheir as- sent, discharges them, and for ob- vious reasons. When the change is made they are not bound by the con- tract in its original form, for that has ceased to exist. They are not bound by the contract in its altered form, for to thait they have never assented. Nor does it matter how trivial the change, or even that it may be of advantage of the sureties. They have a right to stand upon the very terms of their undertaking." See also John A. Tohnan Oo. vs. Hunter, 113 Mo. App. 671'; 88 S. W. 636. Martin vs. Thomas, 24 How. (U. S.) 315; Ohester vs. Leonard, 69 Conn. 495; 37 Atl. 397; Simonson vs. Grant, 36 Minn. 439; 31 N. W. 8i61; Evan vs. Morton, 6S Tex. 258; Post Adm. vs. Losey, 111 Ind. 74; 12 N. E. 121 ; Snodgrass vs. Shader, 168 S. W. 567; Zoigler vs. Halla- han, 1'31 Fed. 206; 66 C. C. A. 1; Antisdel vs. Williameon, 166 N. Y. 372; 59 N. E. 207; Weiss vs. Leich- ter, 113 N. Y. S. 9m; Utterson vs. Elmore, 136 S. W. 9; 164 Mo. App. 646; Hubbard vs. Eeilly, 98 N". E. 886; 51 Ind. App. 19; Bauschard Co. vs. Fidelity & Casualty lOo., 21 Pa. Sup. Ct. Eep. 3170. 29 Evans vs. Graden, 125 Mo. 72; 28 S. W. 439; Bragg vs. Shain, 49 Cal. 131; Board of Com'rs vs. Bran- ham, 67 Fed. Eep. 179. thing done by the creditor, who has no right to consider Whether it might be to the advantage of the surety or not. The surety is en- titled to remain in the position in which he was at the time when the contract was entered into." A slight modification of this ap- pears in Holme vs. Brunskill, 3' Q. B. Biv. 495, in which the holding is that where it is self-evident without inquiry, that the change is benefi- cial to the surety, that the surety will not be discharged, but that if any evidence is necessary to estal>- lish whether or not the change is prejudicial to the surety, the change will be deemed material and the surety discharged. In this case the contract was a leasehold upon wliich defendant was surety. The parties to the lease modified it by the tenant giving up a small part of the land in consid- eration of a reduction of a corre- sponding part in the rent. The faot as to whether this was prejudicial to the surety was in the lower court left to the jury and they found it was not. The leaiving of this question to the jury was held in the Court of Appeals to be error. A dissenting op'inion holds, "Where the surety makes himself responsible in general terras for the observance of certain relations be- tween parties in a certain contract between two parties, he is not re- leased by an immaterial alteration in that relation or contract. "My opinion is in accordance with the finding of the jury, and it will be most dangerous in this particular case to put ourselves in the place of a jury and because we think seven acres may make a difference, or £10 a year mav make a difference, to set aside the finding of the jury, SURETYSHIP DEFENSES. 113 some courts hold that this affords a special reason for the rule that the surety is discharged by any material alteration whether beneficial to him or not. But that if such reference is not made or such knowledge of the main contract is not shown, the surety will not be discharged by alterations not injurious to him.^" §80. Alterations enlarging the principal liability. Changes in the relations between the principal and creditor resulting in larger responsibilities upon the principal will dis- charge the surety or guarantor. Thus a Surety upon the bond of a bank cashier was held to be discharged by an increase of the capital stock of the Bank from $300,000 to $750,000. This increase of capital involv- ing increase of responsibility was considered a material in- crease of risk for the Surety.^^ A change in the business of the creditor which places new duties upon its agent will discharge the Surety of the agent, although the latter continues nominally in the same employ- ment.'^ A private banking company is merged by incorporation into an Insurance & Trust Co. This was held to discharge the 30 Sanderson vs. Aston, L. R., has become surety has taken care 8 Exchq. 73, Kelly, C. B. : " The au- that the original agreement should thorities cited go to show that we be made part of his contract. But are to look at the terms of the in the cases cited to us, when the surety's engagement; not at the original contract was not made part terms of any agreement between the of the surety's contract, but the employer and employed, unless these Court has nevertheless said that the terms are made part of the surety's surety was discharged, there has agreement And if it clearly been some material alteration in appeared that the surety had en- the terms of the original, agreement, tered into the agreement on the faith in the sense that the surety has been of the original contract, that is, if injured or put in a worse position notice had been given to him of the by the change." terms of the contract, and he had, 3i Grocers' Bank vs. Kingman, 16 after that notice, entered into this €rray 473. See also Chandler Lum- bond, he would undoubtedly have ber Co. vs. Eadke, 136 Wis. 495; been discharged by the alteration." 1^?, ^- W. 18S. Polloclc, B. (referring to Whitch- g/no'^lCT '■^'' ''" ^"'^"■ er vs. Hall, cited Ante See. 73): 32 Blair vs. Insurance Co., 10 Mo. "That case (which was no doubt a gigo. very strong decision) has beeii act- In this case the Life Ins. Co. eu- ed on ever since, when the party who gaged in banking and this was held to discharge the Surety of the agent. 114 THE liAW OF SUEETTSHIP. sureties upon the bond given the Banking Co. from all liabili- ties for defalcation committed after th& incorporation.*' §81. Discharge of promisor by extension of time. The defense of " giving time " to the principal is founded upon the fact that any change in the time when the contract is to be performed is a material alteration of the main con- tract. It has been said that all other terms of the contract remaining the same, the mutual consent of the original parties that the payment or performance may be deferred, is not a substitution of a new contract,** but this is merely another form of statement that a mere acquiescence in a delay in per- formance is not an extension of time within the meaning of the rule. A contract or agreement between the original parties to extend the time of performance is clearly such an alteration of the main contract as will discharge the Surety or Guarantor, if such extension is without his consent.*" 38 Benainger vs. Wren, 100 Pa. 500. 3' Benjamin vs. Hillard, 23 How. 165. 3B Ide vs. Churchill, 14 O. S. 383. Ranney, J.. "The obligation of the surety can only be created in writing, and no equitable extension of its terms, by construction or oth- erwise, is allowed. Every contract is composed of the material terms and stipulations embraced in it, and, among these, none is more important than the time of performance. It follows, from the principles already stated, that whatever changes any of these material terms and stipula- tions, so as to destroy the identity of the obligation to which the Sure- ty acceded, necessarily discharges him from liability. An engagement to pay money in six months, is not the same as one to pay it in twelve months; and if the creditor, by a valid agreement with the debtor, ex- tends the time of performance from the shorter to the longer period, he supersedes the old obligation by the new, and cannot enforce payment until the longer period has elapsed. If the Surety is sued upon the old agreement to which alone his under- taking was accessory, he has only to show that that has ceased to exist, and no longer binds his prin- cipal; and if he is sued upon the substituted agreement, he is entitled, both at law and in equity, to make a short and conclusive answer non haeo in foedera v^ni. But such an agreement between the principal parties, is perfectly valid and legal; and until some method can be de- vised for depriving the principal of the benefits of a valid agreement, or of binding the surety to an agree- ment to which he never acceded (a work hitherto thought not to be within the powers of either Courts or Legislatures) the discharge of the latter must ensue." Thomas vs. Stetson, 59 Me. 229; SUEETTSHIP DEFENSES. 115 Moreover, extension of time to the principal, is more than a mere alteration. It is in many cases an increase of risk, and in all cases the Surety or Guarantor is deprived of the right to pay the debt at maturity, and of immediate subrogation to the rights of the creditor against the principal. This right to subrogation is an equity inherent in all contracts of surety- ship. The discharge of the promisor is not, however, de- pendent on showing injury to the promisor. It is the agree- ment to extend which releases the promisor, and the discharge is from the time of that agreemeait The subsequent incon- venience or damage of the promisor does not entep into the ques- tion of the release, since the release has already been accom- plished.^' §82. Agreement for extension must be for a consideration. An agreement for extension will not be binding or valid un- less based upon a consideration. It will not amount to a sub- stitution of a new contract unless the parties have placed them- selves so that they are^ no longer bound by the terms of the original contract as to the time of performance. A mere pas- sive delay or acquiescence in the default of the principal or even mutual assent to a continuation of the default, is not "giving time" within the meaning of the rule, for such an understanding of the parties, unless it take the form of a contract supported by a consideration, may be disregarded by either party. The original agreement subsists and remains in full force, notwithstanding the parties to it see fit not to insist upon its performance or even consent to its non-performance. There Henderson vs. Ardery, 36 Pa. 449 Meggett vs. Baum, 57 Miss. 22 Doc^son vs. Henderson, 113 III. 360- App. 130; Antisdel vs. Willliamson, 165 N. Y. 3T2, 59 N. Y. 207. 38 Bowmaker vs. Moore, 7 Price Price vs. Dime Savings Bank, 124 233 ; Samuell vs. Horwarth, 3 Meriv. 111. 317; 15 N. E. 754; Mobile & 27'2; Rees vs. Berrdngton, 2 Ves. Montgomery Ey. vs. Brewer, 76 Ala. 540; Tudhy v». Woods, 122 C'aL 135; Yeary vs. Smilft., 45 Tex. 56; 6©5; 55 Pac. 683; Eevell vs. Thrasih, E«lberts vs. Eiehardson, 39 Iowa 132 N. C. 803; 44 S. E. 596. 290; Todd vs. Greenwood School Contra — Holding compensated, cor- Dist., 40 Mich. 294; Edwards vs. porate surety not discharged where Ooleman, 6 T. B. Mon. (Ky.) 567; it does not appear that the exten- Insurance 'Co. vs. Hanck, 83 Mo. sion of time was unreasonable or 31 ; Deal vs. ■Cochran, 66 N. C. 269 ; that the surety was prejudiced Planning vs. Murphy, 126 Wis. 538 ; thereby. IT. S. F. & G. Co. vs. 105 N. W. 105'6; Diehl vs. Davis, United States, 178 Fed. 692- lOa 88 P. 532; 75 Kans. 38; Wright vs. C. C. A. 192; Guaranty CO vs Deaver, 114 S. W. 165; 52 Tex. Oiv. Pressed Brick Co., 191 U g 416- 116 THE Law OP SURETYSHIP. having been no consideration to support the extension, the creditor is not precluded from pursuing his remedy against the principal and the promisor under these circumstances cannot claim his discharge.*" The payment by the principal of obligations already due will not amount to a consideration for an extension; if at the ma- turity of the debt the principal agrees to pay part of the amount due, providing the creditor will extend the time for the balance, the extension, although agreed to, will not be bind- ing on the creditor, even though the debtor pays the amount stipulated, since his agreement to pay a part of the sum due creates no new obligation, as he is already bound to pay this amount at this time.'* Where the agreement for extension has been set aside by the creditor on the ground of fraud by the principal the surety will not be discharged since there never was a binding agreement for the extension.^^" The surety is not discharged where an attorney to whom a note had been sent for collection gives the debtor an extension of time, since it is beyond the scope of his authority and therefore not binding on the creditor.^*'' An agreement to extend in consideration of a payment on the debt before it is due will be binding, even though the time till maturity is only one day.'' Philadelphia vs. Fidelity & Deposit (Me.) ; Atlantic Trust Co. vs. Umon Co., 231 Pa. 208; 80 Atl. ©2. Trust Co., 110 Va. 2»6; 67 S. E. 37 Boardman vs. Larrabee^ 51 182. Conn. Sft; Tobin Canning' Co. vs. ssHalliday vs. Hart, 30 N. Y. Fraser, 81 Tex. 407; 17 S. W. 25; 474; Parmelee vs. Thompson, 43 N. Lowman vs. Yates, 37 Jf. Y. 601; Y. 58; Solary vs. Stultz, 22 Fla. Olmstead vs. Latimer, 15S N. Y. 263; Jenkins va. Clarkson, 7 0. 72; 31i3; 53 N. E. 5; First Nat. Bank vs. l^irubull vs. Brock, 31 0. 6. 649; Lineberger, S6 N. C. 454; Zane vs. Sully vs. Childress, 106 Tenn. 109; Kennedy, 73 Pa. 182; Shaffstall vs. 60. S. W. 499; Schwartz vs. Smith, McDaniel, 152 Pa. 598; 25 Atl. 576; 128 N. Y. S. 1; Stroud vs. Thomas, Goodwyn vs. Hightower, 30 Ga. 249; 139 Gal. 274; 72 Pae. 1008. Sullivan vs. Hugely, 48 Ga. 486; ssaEed River National Bank vs. Roberts vs. Stewart, 31 Misc. 664; Bray, 148 S. W. 290; 105 Tex. 312. F.ord vs. Beard, 31 Mo. 459 ; Fair vs. ssft Hall vs. Presnell, 72 S. E. 986 ; Pengelly, 34 Up. Can. (Q. B.) 611; 157 N. C. 290. Eobinson va. Dale, 38 Wis. 330; 39 Uhler vs. Ap>plegate, 26 Pa. 140. Hayes vs. Wells, 34 Ml. 512; Berry , ^"* see Weaver vs. Prebster 37 vs. Pullen, 69 Me. 103; John M. ^.f- ^PP- f82: 77 N E. 674, where Parker & Co., vs. Guillot, 118 La. V ^^.J'^^f ^'''^^ *^f Paj^e"* "'i oao Hf. ci 4oo Vi , oj. 7, June 18, of one year's interest due 223; 42 So. 782; Eureka Stone Co. „„ j,,^^' ^g j„J ^^^ constitute a vs. First Christian Church, 86 Ark. ponsidpration for a contract to cx- 212; 110 S. W. 1042; Almnn H. tend the time of payment of such Fogg Co. vs. Bartlett, 75 Atl. 380 note from June 26. SURETYSHIP DEFENSES. 117 §83. Payment of advance interest as a consideration for ex- tension. The payment in advance of the legal rate of interest fur- nishes an adequate consideration for an agreement to extend the time of payment of the principal obligation. If the debtor does not pay at maturity the law imposes upon him an obliga- tion to pay interest on the debt so long as he retains the money, but there is no obligation to pay such interest in advance. The receipt of the creditor of advance interest imports a consid- eration and will make valid and binding his promise to extend the time of payment.*" It has been held that an agreement to extend payment on a note is binding upon the parties, so as to discharge the non-con- senting sureties, if the debtor promises to pay the regular legal rate of interest for a specified time, and that it is not neces- sary that such interest be paid in advance in order to create a consideration.*"^ 11 People's Bank va. Pearaons, 30 Bt. 711; Maher vs. Lanfrom, »8 111. 51.3; Kaler vs. Hdse, 79 Ind. 301; Merchants Ins. Co. vs. Hauek, S3 Mo. 21; Limelock Bank vs. Mal- lett, 34 Me. 547 ; Rose vs. Williams, 5 Kan. 483 ; Wyatt vs. Duf reue, 106 111. App. ai4; Red River Nat. Bank vs. Bray, 13i2 S. W. 968; Bedford vs. Kellev, 139 N. W. 250; 173 Mich. 492. The payment of usurious interest in advance is a good consideration for extension. Wild vs. Howe, 74 Mo. 531; Osborn vs. Lovr, 40 0. S. 347; Myers vs. Bank, 78 111. 257; Lemmon vs. Whitman, 75 Ind. 318; Flemming va. Barden, 126 N. C. 450; 36 S. E. 17; Glenn vs. Morgan, 23 W. Va. 467 ; Miblack vs. Cham- peny, 10 S. D. 165; 72 N. W. 402; Froude vs. Bishop, 49 N. Y. S. 955. Cnntra — Farmer's and Trader's Bank vs. Harrison, 57 Mo. 503. The payment of uaurioua interest fails as a consideration in Missis^ aippi, where the penalty of uaury is the forfeiture of the entire interpst. Polkinghorne vs. Hendricks, 61 Mias. 366. In those states where the payment of usurious interest is considered as :a part payment on the debt, the agreement to give time iis not sun^ ported by any consideration and the surety is not discharged. Nightin- gale vs. Mcginnia, 34 N. J. L. 461; ilartraan vs. Danner, 74 Pa. 36; Cornwell vs. Holly, 5 Rich. 47; Jen- ness va. Cutler, 12 Kan. 500. "MoLomb vs. Kittridge, 14 O. 351, Read, J.; "It is just as compe- tent for tne principals to a note to extend the time of payment for a specified period, as it was to fix the time of payment originally. If the lender of money, secured hy a note, after the same becomes due, con- tracts with the borrower that the time for paying the same shall be extended for one year, or for any other period, upon consideration that the borrower shall pay the legal or less rate of interest, why is not that a, binding oontract? The lend- er, by this contract, secures to him- self the interest on his money for the year ; and the borrower precludes himself from getting rid of the pay- ment of interest, by discharging the principal. It is a valuable ri^ht to have money placed at interest, and it is a valuable right to have the privilege at any time, of getting rid of the payment of interest by dis- charging the principal. Bv this contract, the riffht to interest is se- cured for a given period, and the right to pay off the principal, and get rid of paying the interest, is 118 THE LAW OP SUEETYSHIP. A promise by the principal debtor to pay usurious interest stands upon the same basis. The effect of such contract is to bind the party to pay at most, only the legal rate, and it may be doubted whether such promise to pay the legal rate or usurious interest, adds any new obligations to those already resting upon the debtor.*- An agreement to pay a higher rate than the legal rate and not tainted with usury, is a good consideration and will sup- port an extension."' The payment of interest in advance merely supplies the element of consideration and does not of itself amount to a contract to extend,** although such payment is prima facie evidence of an agreement to extend.*^ also relinquished for such period. Here, then, are all the elements of a binding contract. But it is Said there is no oonsideraMon for the extension of time, beoause the law gives six per cent, after the note is due. But the law does not 'secure ■ the payment of this interest for any given period, or prevent the dis- charge of the principal ai any mo- ment." This seems to- be the entire ques- tion, for if the promise to pay in- terest is a consideration, then, for that reason, the debtor is precluded for a given period from discharging the debt; and if the promise to pay interest is not a consideration, then the debtor is not so precluded. /Ohute vs. Pattee, 37 Me. 102; Moore vs. Redding, 6® Miss. 841 ; 13' South. 849; Fambro vs. Keith, 122 S. W. 40. Oontra — Fanning vs. Murphy, 126 Wis. 538 ; 105 N. W. 1056 ; Dean vs. Sedan Milling Co., 19 Cal. App. 28 ; 124 Pac. 736. See also Wood vs. Newkirk, 15 O. S. 295. Here the holding was, that the promise although to pay usuri- ous interest was banding for the legal rate, and hence there was suf- ficient consideration to support an extension. Bank vs. Walter, 104 Tenn. 11; 55 S. W. 301. 42 Reynolds vs. Ward, 5 Wend. 501 ; Witmer vs. EMison, 71 111. 301 ; Meiswinkle vs. Jung, 30 Wis. 361; Scott vs. Hall, 6 B. Men. (Ky.) 285. The execution of a note for the iisurious interest agreed upon is a good consideration for the extension. Ihe creditor who accepts such a note is not in a position to say that it is void and hence, as to him, the ex- tension based upon this note as a consideratoin, is valid, although the maker of such note for usurious in- terest might defend against it. Moulton vs. PostoD, 52 Wis. 169 ; 8 N. W. 621 ; Scott vs. Saffold, 37 6a. 384; Corielle vs. Allen, 13 Iowa 289. Contra — Kyle vs. Bostwick, 10 Ala. 5S9; Anderson vs. Mannon, 7 E. Mon. (Ky.) 217; Smith vs. Hyde, 36 Vt. 308. The rule however seems to be dif- ferent when no note is given and the agreement to pay usurious interest rests in parol. 'Cox vs. Mobile Co., 37 Ala, 320; Galbraith vs. Puller- ton, 53 111. 126 ; Benz vs. PuUen, 6© Me. 10); Thayer vs. King, 31 Hun 437 ; Payne vs. Powell, 14 Tex. 600. '•s Fawcett vs. Freshwater, 31 0. S. 637; Dodgson vs. Henderson, 113 111. 360. Contra — ^Abel vs. Alexander, 45 Ind. .523. ** Oxford Bank vs. Lewis, 8 Pick. 47; Haydenville Bank vs. Parsons, 138 Mass. ,53; Morse vs. Blanchard, 117 Mich. 37; 75 N. W. 93; New York Life Ins. 'Co. vs. Casey, 178 N. Y. 381 ; 70 N. E. 916 ; Prussing vs. Lancaster, 234 111. 462; 84 N., ■ E. 1062. *5 Scott vs. Saffold, 37 Ga. 384 Woodburn vs. .Carter, .50 Tnd. 376 Coster vs. Mesner, 58 Mo. 548 Lawrence vs. Thorn, 9 Wyo 414 64 Pac. 339; Revell vs. Thrash, 132 SXJRETYSHIP DEFENSES. 119 §84. Agreement for extension must be for a definite time. An important element of a contract for extension is that it must be for a definite and fixed time, otherwise no obligation rests upon the creditor to forbear action, since no breach of the agreement is provable. If it cannot be determined to what time the extension runs, then the agreement is void for uncer- tainty.*" There being no valid definite extension, the surety or guarantor is not discharged. An agreement to extend till "some time in the summer," will be void for uncertainty.*' Also an extension till "after harvest. ' ' *' Where the extension was for twenty or thirty days, it was considered a binding agreement for twenty days.*® §85. Extension of time by the execution and delivery of a note for the debt, payable at a later date. If the principal and Ihe creditor agree upon an extension of time, and the principal executes and delivers to the creditor his promissory note covering the entire debt maturing at the date agreed upon, such new note will operate to extinguish or post- pone the original obligation, and as a substitution of a new and independent contract between the debtor and creditor, and a surety or guarantor of the first contract is released.^" Such a transaction is not strictly a contract for extension, N. C. 803; 44 S. E. 596; English to he In'TnIinff and t.ha.t t.he mirety Ts. Landon, 181 111. 614; 54 N. E. not consenting was discharged. 91; Schieber vs. Traedt, 19 Ind. «» Tlamilton vs. Prouty, 50 Wis. App. 34!9; 49 N. E. 605; Hubbard 592; 7 N. W. 659. vs. Ogden, 22 Kan. 363; Windhorst so Manning vs. Alger, 8'5 la. 617; vs. Bergendahl, 111 N. W. 544; 21 52 N. W. 542; American Iron & S. D. 218. Steel Mfg. 0>. vs. Beall, 101 Md. *a Jenkins vs. Clarkson, 7 0. 72; 423; 61 Atl. 629; National Park Ward vs. Wick, 17 0. S. 159 ; Men- Bank vs. Koehler, 204 N. Y. 174 ; 97 ifee vs. Clark, 35 Ind.. 304; Beach X. E. 468; Smith vs. First Nat. vs. Zimmerman, 106 Ind. 495; 7 N. Bank, 5 Ga. App. 139; 62 S. E. 711; E. 237; Freeland vs. Ctompton, 30 People vs. Grant, 138 Mich. 60; 100 Miss. 424; Woolfolk vs. Plant, 46 N. E. 1006. Ga. 42; Morgan vs. Thompson, 60 It is also held that the aceept- la. 280; 14 N. W. 306; Thompson anee of such note by the creditor vs. Robinson, 3'4 Ark. 44 ; Hayes vs. raises an implied agreement to ex- Wells, 34 Md. 512; Clark vs.Gerst- tend tlie original obligation and ley 904 U S 504 *''*^' ^^^ surety not consenting is « Miller vs. Stem, 2 Pa. 286. «!,^'J/'^*'l-., ^^}>^^l^ "^ Gurney, B f "<11 V- Hill, 8 Ore. 247. «^ ^,.^,,1^6 l.^r 3^;" ^Ztll^ But see Moulton vs. Posten 52 Co. vs. Pitcher, 36 Iowa 593; Dixon Wis. 169; 8 N. W. 621, where it is vs. Spencer, ."ifl Md. 246. held that an extension till "after But see Fummelatown Brown- threshing" was sufficiently definite stone Co. vs. Kuerr, 25 Pa. Sup Ct 465. 120 THE liiW OF SURETYSHIP. but is in the nature of a payment, but whether the onginal debt is merged in the new promise, and so extinguished, . or merely postponed, is immaterial so far as its effect upon the surety, since the creditor cannot enforce his rights upon either the original or substituted agreement till the maturity of the latter. The creditor loses his rights against the surety, even if he has the option to bring his action at the maturity of the new note, either upon the original or substituted contract. It has been held that the execution of a note for a past due obligation, where there is no express agreement for an exten- sion, does not preclude the creditor from surrendering the note before it is due and proceeding upon the original indebted- ness.''^ It follows of course that the application of this rule prevents the discharge of the surety. The taking of the debtor's note with the expressed intention and understanding that the surety is to remain liable, will not suspend the remedy on the main contract, such note being merely collateral will not operate to release the surety."^ If for any reason the new note is invalid the sureties on the original note are not discharged since there never was a valid extension of time granted to the debtor.^^" .§86. Collateral securities maturing at a later date. A contract to extend time will not be implied from the fact that the creditor accepts from the debtor collateral securities maturing at a later date, unless such collaterals are taken as a substitution for, or in payment of, the original obligation, as distinguished, from their use merely as additional security."' While such additional security implies an assent by the cred- 51 Moore vs. Fitz, 59 N. H. 572 ; guarantor is unafleoted by the fact Gordon vs. Price, 10 Ired. 3®5; Mar- that the debtor grves his note ma- shall vs. Marshall, 42 Ala. 149; turing at the sams time as the main Breitung vs. Lindauer, 37 Mioh. contract. Case va. Howard, 41 Iowa 217 ; Poole vs. Rice, 9 W. Va. 73 ; 479 ; Robinson vs. Dale, 38 Wis. 330. Hall vs. First Nat. Bank, 5 Kan. szaCorydon Deposit Bank vs. Mc- App. 493; 47 Pac. 556. Clure, 140 Ky. 149, 130 S. W. 971. Contra — ^Mobile Life Ins.. Co. vs. 53 Austin vs. Curtis, 31 Vt. M; Randall, 71 Ala. 220. Remsen vs. Graves, 41 N. Y. 471; B2 Paine vs. Voorhees, 26 Wis. Wade vs. Staunton. 5 How. (Miss.) 922- Jones vs. Sarchett, 61 Iowa 631; Sigourney vs. Wetherell, 6 620; 16 N. W. 589. Met. 553; Merriman vs. Barker, 121 The liability of the surety or Ind. 74; 22 N. E. 992. SUEETTSHIP DEFENSES. 121 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 of 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 eases of surety- ship between individuals, Wo 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 bv a valid contract between the debtor and creditor. it oniy 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- B* 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 & Lelnster ton vs. James, 6 E. I. 103. In this Bank vs. France, 24 L. R. Ir. 82. case the debtor executed a mortgage ob 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. contained a defeasance clause, pro- 132 ; 2 N. E. 874. viding if the debt was paid in five "e Morse vs. Huntington, 40 Vt. years that the mortgage should be 488. 122 THE LAW OF STJEETYSHIP. ertheles® a binding extension so long as the law remains in force." §88. Giving time to surety — Effect npon co-surety. A contract betweeoi the 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 w^s granted until the expiration of the extension. For this " State vs. Roberts, 68 Mo. 234 j 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 Pac. 538; Pybus vs. Gibb, 6 El. & Bl. 902. Lord Campbell, C. J.: "It may be considered settled law that, where there is a bond of suretyship for an ofScer, 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 afiect the peril of the sureties, the bond i£! avoided There is no inconvenience; for, when an Act oi Parliament alters the duties of an officer, it will be easy to re- quire him to give fresh sureties, or the surety bou'is may be«framed sc as to continue t}>e liability of the sureties, whatever alterations might take place by Ihe act if the Legis- lature." The Courts of several States have distinctly declined to adopt the •'iow stated in the text and hold that the public officers accept their office, and give their bonds, affected with notico of the sovereign rights of the people, through their Legislature, to con- trol the duties of such officers by Bucb enactments as the public good requires, and that their sureties are charged with this notice, and that no contract exists between the offi- ner 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, i Gill (Md.) 249, the bond obU- 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 ti:Qe for tax collectors to make their se'-tlements. It was held that the suretionald, 32 E. I. 406; 190 Mass. 567; 77 N. E. 639. 79 Atl. 969. ssoKissire vs. Plunkett-Jerrell »» Reese vs. V. S., 9 Wall. 13; XT. Grocery Co., 145 S. W. 5«7; 103 S. vs. Backland, 33 Fed. Rep. 156. SURETYSHIP DEFENSES. 128o 2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation. 3. By the intentional cancellation thereof by the holder. 4. By any other act which will discharge a simple contract for the payment of money. 5. When the principal debtor becomes the holder of the instrument in his own right at or after maturity. A person secondarily liable on the instrument is discharged': 1. By any act, which discharges the instrument. 2. By the intentional cancellation of his signature by the nolder. 3. By the discharge of a prior party. 4. By a valid tender of payment made by a prior party. 5. By a release of the principal debtor, unless the holder's right of recourse against the party secondarily liable is ex- pressly reserved 6. By any agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument unless the right of recourse against such party is expressly reserved. Accordingly it has been held that since the code provides in what manner and for what causes such instruments may be discharged and by force of the rule expressio unius est exclusio alterius, parties upon such instruments who are primarily liable thereon cannot otherwise be relieved from responsibility for their payment. As to them the defense of extension of time is no longer available."'" But a guarantor of a negotiable instrument being only secondarily liable thereon is by the express provisions of the 09a Richards vs. Market Exchange ing & Mfg. Co. vs. Heyburn, 106 Bank, 81 0. S. 348; 90 N. E. lOOO; Pac. 170; 56 Wash. 628; Wolsten- Vanderford ts. Farmers/ & Mechan- holme vs. Smith, 97 Pac. 329; 34 ics Bank, 105 Md. 164; 66 Atl. 47; Utah 300; Cellers v. Maeehem, 49 Lane vs. Hyder, 163 Mo. App. 688; Or. 186; 89 Pac. 426. 147 S. W. 614; Bradley Engineer- 128& THE LAW OP SUBETYSHIP. code disehaxged by an extension of time unless the right of recourse is expressly reserved.'"'' §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.'" 096 Northern State Bank of situation of the parties is not va- Grand Forks vs. Bellamy, 125 N. ried and the rule does not apply. W. 888; 19 N. D. 509; Morehead When the creditor proceeds against vs. Citizens Deposit Bank, 113 S. the surety in such case, and the W. 501; 130 Kent 414. surety pays, he is then entitled to 70 Morgan vs. Smith, 70 N. Y. the place of the creditor as it was 537, Folger, J. (545) : "The ground originally, and may in turn enforce upon which a surety is held dis- the principal, who may not set up charged when further time for pay- against the surety the new arrange- ment is given the principal debtor, ment with the creditor." is that the rights of the surety are Salmon vs. Clagctt, 3 Bland's Oh. varied, as he cannot then, when the (Md.) 125, Bland, C. (p. 178) : debt is due and payable, make pay- "Such an agreement, reserving the ment, and thus put himself in the remedies, might not, in many cases, place of the creditor, according to be of the least benefit to the princi- the original implied contract, and pal debtor; since it leaves him en- enforce repayment from the prin- tirely at the mercy of his surety; cipal. Where the remedies of the yet if the parties do not expressly creditor are reserved against the contract, the surety can have no sureties, notwithstanding the new cause to complain that the implied agreement with the principal, the contract has been altered or im- 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 agreement 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 there is not paired, in any way, to his prejudice; and therefore he xiannot be dis- charged." Sqhier jra. Lohring, 6 Gush. 537, Metcalf, J.: "It is very obvious that a principal debtor nmy gain little or nothing by such composi- tion as this with his creditor; inas- much as he is left liable to a, like proceedings against him by his sureties, 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 legal reason why he should not be held to that agreement." Morse vs. Huntington, 40 Vt. 488 ; Mueller vs. Dobschuetz, 89 111. 176; Uupee vs. Blake, 148 111. 453; 35 N. E. 867; Bank of Biddeford vs. McKen- ney, 67 Me. 272; Kenworthy vs. Sawyer, 125 Mass. 28; Eucker vs. Eobinson, 38 Mo. 154; Price vs. Barker, 4 El. & Bl. 760; Kearsley vs. Cole, 16 M. & W. 128; Owen vs. Homan, 4 H. L. C. 997; Boaler vs. Mayor, 19 C. B. N. S. 76; Austin vs. Gibson, 28 Up. Can. (C. P.) 554; Hagey vs. Hill, 75 Pa. 108; Koe- nigsburg vs. Lennig, 161 Pa. 171; Dean vs. Rice, 63 Kan. 691; 66 Pac. 992; Meredith vs. Dibrell et al., 155 S. W. 163, 127 Tenn. 387. Under Negotiaible Instruments Act (Acts 1899, 0. 94, Par. 120), providing that a, person secondarily liable on an instrument is discharged by an extension of time of pay- ment, unless made with the assent or unless right of recourse against him is reserved, a surety on the note was not discharged by the taking of a renewal note, though he was not notified of such taking when the extension was given un- der express reservation of all rights against the surety or his estate. Contra — Gustine vs. Union Bank, 10 Kob. (La.) 412. '1 Boultbee vs. Stubbs, 10 Ves. 20. 72 Robinson vs. Godfrey, 2 Mich. 408; Blair vs. Eeid, 20 Tex. 310; Leslie vs. Conway, 59 Cal. 442; Sta- ver vs. Missiner, 6 Wash. 173; 32 Pac. 995; Tatlock vs. Smith, 6 Bing. 339; Stracy vs. Bank of England, 6 130 THE LAW OF SUEETYSHIP. 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 liie original contract, yet the surety is discharged, since it is not to be presumed that the creditor would violate his compact vdth 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 vdth knowledge of an extension of time, without his consent, to a principal, promises to pay the debt, he will 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- taking, 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 Bing. 754; Allies vs. Probyn, 2 Wckerson vs. Com. Ripley Co., 6 Cromp. M. & R. 408; Bauschand Co. Ihd. 128; Austin vs. Dorwin, 21 Vt. vs. Fidelity & Casualty Co., 21 Pa. 38; McICaughan et al. vs. Baldwin, Sup. Ct. 370. 153 S. W. 660. The contrary doctrine is sup- ^4 Fowler vs. Brooks, 13 N. H. ported in Ford vs. Beech, 11 Q. B. 240; Porter vs. Hodenpuyl, 9 Mich. 852. 11; Sigourney vs. Wetherell, 6 Met. See also Frazer vs. Jordan, 8 El. 553; Bank vs. Johnson, 9 Ala. 622; & Bl. 303; Irons vs. Woodfill, 32 Bank vs. Whitman, 66 111. 331; Ind. 40; Mills vs. Todd, 83 Ind. 25; Rockville Bank vs. Holt, 58 Conn. Brown vs. Shelby, 4 Ind. App, 477; 526; 20 Atl. 669. Commercial & Farmers Nat. Bank vs. '"> Rindskopf vs. Doman, 28 O. S. McCormick, 97 Md. 703; 55 Atl. 439. 516. TsGreely vs. Dow, 2 Met. 176; ^e Bramble vs. Ward, 40 0. S. 267. Harbert vs. Dumont, 3 Ind. 346; SUEETYSHIP DEFENSES. 131 admission of liability made 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 I 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 sbown, although- circumstances will sometimes sbow 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 bis 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 (Ky.) 567; American Iron & Steel N. W. 558; Merrimack Co. Bank vs. Mfg. Co. vs. Beall, 101 Md. 423; 61 Brown, 12 N. H. 320; Savings Bank Atl. 629. vs. Chick, 64 N. H. 410; 13 Atl. 872; s" Briggs vs. Norris, 67 Mich. 326; Montgomery vs. Hamilton, 43 Ind. 34 N. W. 582. 451; Kerr vs. Cameron, 19' U. C. C. si Springer Lith. Co. vs. Graves, P. (Q. B.) S&e. 97 la. 39; 66 N. W. 66; Williams 78 Miller vs. Spain, 41 O. S. 376. vs. Gooch, 73 111. App. 537; Hallock See also National Bank vs. Mur- vs. Yankey, 102 Wis. 41 ; 78 N. W. phy, 125 lowia 607 ; 101 N. W. 441 ; 156. Monarty vs. Bagnetto, 110 La. 598; sis Welch vs. Walsh, 177 Mass. 34 So. 701. 555; 58 N. E. 440; Yager vs. Ken- 78 Stewart vs. Parker, 55 Ga. 6.56 ; tiicky Title Co., 112 Ky. 932; 66 Edwards vs. Coleman, 6 T. B. Mon. S. W. 1027 ; Wilson vs. White, 102 132 THE LAW OF SUEETYSHIP. 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 -mtla. 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 imtil 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.** S. W. 201 ; 82 Ark. 407 ; Merritt vs. Haas, 106 Minn. 275; 118 N. W. 1033; Williams vs. Kennedy, 67 S. E. 821; 134 Ga. 339; Berman vs. Elm Loan & Savings Co., 114 Mich. 191; 78 Atl. 1104. s3Villars vs. Palmer, 67 111. 204; Moore vs. Gray, 26 O. S. 525 ; Hooks vs. Branch Bank, 8 Ala. 580; Banks TS. State, 62 Md. 88; Willis vs. Chowning, 90 Tex. 617; 40 S. W. 395; Yerxa vs. Euthruff, 120 N. W. 758; 19 N. D. 13. But see Waughop vs. Bartlett, 165 111. 124; 46 N. E. 197. Contra — Johnsop' vs. Success Brick Machinery, 46 So. 957; 95 Miss. 169. 83 Dye vs. Dye, 21 O. S. 86 ; Rich- ards vs. The Commonwealth, 40 Pa. 146. See also Sichel vs. Carrillo, 42 Cal. 4913; Bull vs. Coe, 77 Cal. 54; 18 Pac. 808; Smith vs. Gillam, 80 Ala. 296; Halderman vs. Woodward, 22 Kan. 734; Cohea vs. Commission- ers, 15 Miss. 437. Contra — Anchampaugh vs. Schmidt, 70 la. 642; 27 N. W. 805, Adams, J.: "It would not be de- nied that a surety upon a note may set up any meritorious defense which the principal, if sued, might set up on his own behalf. Now when the statute of limitations has run as against the principal, the law excuses him from setting up any meritorious defense which he may have, and allows him to rely upon the technical defense of the statute alone. The theory is that he was not under any obligations to preserve any longer the evidence of his meritorious defense if he had any, and so the Court will not in- quire whether he had such defense or not. The Statute has been prop- erly denominated the statute of re- pose. As the surety is allowed to set up any meritorious defense which the principal might have set up, we are not able to see why he should be required to preserve the evidence of such defense after the principal was not bound to do so. Again, when a surety pays a debt, it is his right SITEETYSHIP DEFENSES. 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 upon 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. 1^0 liability continues against a promisor in suretyship if the principal obligation has been satisfied by payment, or the substitution of other security in the place of the original surety- ship contract. to look to the principal for reim- lost, or^ in the multitude of official buTsement. But a. surety paying a duties, the circumstances have been debt, after it had become barred forgotten. After all this care to against the principal, would be re- protect his rights and interests, it mediless." Bridges vs. Blake, 106 would indeed be singular if it was Inc. 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 has 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." tecftion against these charges, made 84a Marshall vs. Hudson, 9 Yerg. after it may well be presumed, the (Tenn.) 57; Reeves vs. Pulliam, 7 evidence to refute them has been Baxt. (Tenn.) 119. 134 THE LAW OP SUEETTSHIP. 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 whidi are se- ssSolary vs. Stultz, 22 Fla. 263; Gould vs. Eobson, 8 East. 580. 88 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 v^. Knight, 31 Vt. 701; Car- son vs. Eeid, 137 Cal. 253; 70 Pac. 89; ExphangeBank vs. McDill, 56 S. C. 563; 35 S. E. 260; Lee vs. Man- ley, }54 N. E. 244; 70 K. E. 385; Allei;,, J. : "The general rule as to the apT>11eation oi payments is that the debtor has the right, in the first instance, to direct the application of a payment made to a creditor vpho holds a secured and an unse- cured debt, and that this right must be exercised at the time the pay- ment is made. If the debtor does not exercise this right, the creditor may apply it to either debt, or he may apply a part to one debt and the remainder to the other, and he is not restricted to the time the payment is made. If; however, he makes the application, he cannot change it without the consent of the debtor. If neither the debtor nor the creditor makes the application, the law applies it to the unsecured debt." 87 Harding vs. Tifft, 75 N. Y. 461, Baipallo, J.: "It is contended that the right of the creditor to make the application is subject to the conliticn that such application be not inequitable, and such is the lan- guage used in some of the authori- ties cited. The equities referredi 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 cast upon the Court of making the proper application, the equities of the surety would doubtless be considered. But where the application has been made by the creditor, in accordance with his apparent legal right, and in 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 applioatiotni. .... 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. Eounsavell, 74 111. 238; Mathews vs. Switzler, 46 Mo. 301 ; Ilorrison vs. Bank, 65 N. H. 253; 20 Atl. 300, SURETYSHIP DEFENSES. 135 cured also by sureties and others not, that the creditor may apply the proceeds of the collateral first to the payment of the debts for which there are no securities.** A j-efusal to a(3cept 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 the debt by presenting to the 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 the surety by accepting payment."^ The taJsing of additional security will not discharge a surety or guarantx^r, 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 indemnity."* §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 Contra — ^Ida County Savings Bank Old Dominion Building Assn., 119 vs. Seidensticker, 128 la. 54; 102 N. C. 257; 26 S. E. 40. N. W. 821, where it was held that It is held, however, that the rule payments on an account, in the ab- stated in the text does not apply to sence of an agreement or direction the sureties upon the bond of a pub- to the contrary, will be applied to lie officer, where the principal is m the satisfaction of those items of default of the performance of his charge which are earliest in point official duty, and that a tender and of time. refusal does not convert an official 88 Wilcox vs. Fairhaven Bank, 7 trust into a mere private liability. Allen 270 ; Exchange Bank vs. Mc- State vs. Alden, 12 O. 59. Millan, 76 S. C. 561; 57 S. E. 630; so Haves vs. Joseph, 26 Gal. 535; Cain vs. Vogt, 116 N. W. 786; 138 O'Conor vs. Braly, 112 Cal. 31; 44 la. 631. Pac. 305. But see Brown vs. First Nat. si Clark vs. Sickler, 64 N. Y. 251; Bank, 112 Fed. 901; Merchants Ins. Hiller vs. Howell, 74 Ga. 174; Wil- Co. vs. Berber, 68 Minn. 420; 71 son vs. McVey, 83 Ind. IDS. N. W. 634 ; Crane vs. Pacific Heat 92 Ante Sec. 7'5. & Power Co., 36 Wash. 95 ; 78 Pac. 98 Trustees of Presbyteriani Board 460. vs. Gilliford, 139 Ind. 524; 38 N. E. 89 Joslyn vs. Eastman, 46 Vt. 2S8; 404; Sigourney vs. Wetherell, 6 Met. Fisher vs. Stockebrand, 26Kas. 565; 553; Wadsworth vs. Allen, 8 Gratt. Curiae vs. Packard 29 Cal. 194; 174; Citizens Bank vs. Whinery, Randol vs. Tatum, 98 Cal. 390; 33 110 Iowa 390; 81 N. W. 694; Hand Pac. 433; Spurgeon vs. Smith, ll4 Mfg. iCo. vs. Marks, 36 Ore. 523; 62 Ind. 453; 17 N. E. 105; Smith vs. 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 iJiat wliidi 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 medium of payment, 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 surely may be held, although the evidences of the indebtedness have been givn up, at the time of the payment."" If a new note is given in renewal of another, and the sig- , 94 Spycher vs. Werner, 74 Wis. and it was held that the surety was 456; 43 N. W. 161; Clark vs. Bil- not released. Pritchard vs. Hitch- lings, 59 Ind. SOQ'; Bristol Milling & cock, 6 Man. & G. 151 ; Swartz vs. Mfg. Co. vs. Probasco, 64 Ind. 406. Fourth Nat. Bank, 117 Fed. 1; 54 95 Petty vs. Cooke, L. E. 6 Q. B. C. C. A. 387; Northern Bank of C. 790. In this case the payee of Kentucky vs. Farmers Nat. Bank, a promissory note accepted the 111 Ky. 350: 63 S. W. 604; Hooker amount thereof in good faith from vs. Blount, 97 S. W. 1083; 44 Tex. the principal, and without notice Civ. App. 162. that the payment was a fraudulent It is also held that even though preference, and surrendered the note, the creditor receives the unlawful The principal afterwards entered preference with knowledge of the into a composition deed for the ben- insolvency of the principal, he may efit of his creditors. The trustee nevertheless, when compelled to sur- under the deed avoided the payment render the preference, recover from as a fraudulent preference and the the surety. Hamer vs. Batdorf, 35 payee returned the amount to the 0. S. 113; Watson vs. Poague, 42 trustee, and brought suit against la. 582. the surety on the note. The surety But see Northern Bank of Ken- pleaded payment by the principal, tucky vs. Cooke, 13 Bush (Ky.) 340. SUEETYSHIP DEFENSES. 137 nature of the new note is forged, and the 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 all 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- so 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; Kineaid 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; Hitter 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 »' Bank vs. Dauckmeyer, 70 Mo. supported by the great weight of au- App. 168; Winsted Bank vs. Webb, thority. Burnhisel vs. Firman, 23 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 »8 Godfrey vs. Crisler, 121 Ind. obligation which he has taken in 203; 22 N. E. 999; M'Crillis vs. satisfaction of a prior demand, is How, 3 N. n. 348. usurious and therefore void, in or- »» Glass vs. Thompson, 9 B. Men. 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 SUEETYSHIP. 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 subrogation 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 this subrogation. It readily appears, therefore, that the reasons that underlie 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.^"' 100 Henderson vs. Huey, 45 Ala. 98 Pa. 432; Templeton vs. Shakley, 275; Winston vs. Yeargin, 50 Ala. 107 Pa. 370; Day vs. Eamey, 40 0. 340; Kirkpatrick vs. Howk, 80 111. S. 446; Planklnton vs. Gorman, 93 122; Weik vs. Pugh, 92 Ind. 382; Wis. 560; 67 N. W. 1128; Pearl vs. Guild vs. Butler, 127 Mass. 3S6; Deacon, 24 Beav. 186; Brown Car- Cummings vs. Little, 45 Me. 183; riage Co. vs. Dowd, 155 N. C. 307; Stallings vs. Bank, 59 Ga. 701; 71 S. E. 721. Bank of Monroe vs. Gifford, 79 la. loi Otis vs. Van Storch, 15 E. I- 300; 44 N. W. 558; Union Bank vs. 41; 23 Atl. 39; Friend vs. Smith Cooley, 27 La. An. 202; Taylor vs. Gin Co., 59 Ark. 86; 26 S. W. 374. Jeter, 23 Mo. 244; Brown vs. Bath- 102 Post Chapt. 10. turn, 10 Ore. 158; Clow vs. Derby, 10s Campbell vs. Eothwell, 47 L. SUEETYSIIIP DEFElfSES. 139 If the suretyship contract was made upon the condition that the principal shall furnish the 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 such 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; Foerderer vs., Ind. 346; Freaner vs. Yingling, 37 Moors, 91 F. 476; 33 C. C. A. 641. Md. 491; Willis vs. Davis, 3 Minn. losHardwick vs. Wright, 35 Beav. 17. 133; Rainbow vs. Juggins, 5 Q. B. It is not necessary that the surety Div. 422; Blydenburgh vs. Bingham, have any knowledge of the addi- 38 N. Y. 371; Green vs. Blunt, 59 tional security at the time he signs, la. 79; 12 N. W. 762; Lilly vs. Rob- or at the time the security is given; erts, 58 Ga. 363. he becomes a beneficiary of the trust "° Mioss vs. Pettingill, 3 Minn, relation, without notice of its exist- 217; Dunn vs. Parson, 40 Hun 77; ence. and can claim its benefits when- ^"^" ''^- O'Donald, 23 Fed. Rep. ever brought to his knowledge. "' Mayhew vs. Crickett, 2 Swanst. ^^ *■'« creditor fails to meet this 185, Lord Eldon, C. : " Sureties are ^"'■'^^° ^^ ™''^'"g "° P''°°* ^^ t° t^e entitled to the benefit of every se- ^^"1^ °^ *^« property or lien re- curity which the creditors had '^^«'^' ^^ ^"^ ^ ^^"^^^ *° ^^^e .gainst the principal debtor, and •'^^^^^^^ *!»« Pr°eprty at its face whether the surety knows the exist- ^^^''t ""'* "^'^'^ ^^^ '''^^*^ ence of those securities is imma- t * ^ ""^^L f """^ ^"^ ^''^''^■ jgj.jj^j „ Fielding vs. Waterhonse, 8 Jones & 104 Polak vs. Everett, 1 Q. B. Div. ^^^' ^^*" 140 THE LAW OF SUEETYSHIP. other securities, applicable to the debt, suffident in value to pay the debt, and to which the surety upon reobvery against him, would be subrogated, on the ground that the creditor has violated a vested right of the surety, and will not be permitted, at will, to throw upon the surety, the risk of making the balance of his securitiea 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 liem,^"" will 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 wtiidi are applicable to the debt for which another is surety or guarantor. The conse- quences to the promisor 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 own 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 care 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. "7 Holt vs. Body, 18 Pa. 207. Guay, 76 N. H. 216; 81 Atl. 47:5. Contra — rSaline County vs. Buie, "The holder of a promissory note is 65 Mo. 63. under no obligation to litigate the A release of an execution upon title to collateral security at hia own land upon which the judgment is a expense, for the benefit of a surety; lien, and which remains a lien after but if he enters upon such litigation the release of the execution, is held for the protection of all parties in- not to discharge the surety, since terested and in good faith makes a the security of the surety is not reasonable compromise with adverse thereby diminished. Sasscer vs. claimants, a surety who had full Young, 6 Gill & Johns. (Md.) 243; knowledge of the situation and re- Wood vs. Brown, 104 Fed. Eep. 203. fused to participate in the pro- 108 State Bank vs. Pmith, 155 N. ceeding cannot avoid payment of the Y. 185; 49 N. E. 680: Thomas vs. note on the ground that a larger Cleveland, 33 Mo. 126: Lafayette sum should have been realized from Co. vs. PTixon, 69 Mo. 581. the security as a result of the suit." 109 Pedwell vs. Gephart, 67 la. 44 ; "o Jenkins vs. National Bank, 58 24 S. W. 585; Berlin Nat. Bank vs. Me. 275. SUEETTSHIP DEEENSES. 141 While this may properly he denominated passive negligence, it is a hreaoh of duty toward the promisor of the same char- acter as if the creditor had voluntarily released the securities. Thus the principal gives a mortgage upon his property, which the creditor fails to file or put upon record until after other liens have intervened/^^ or the creditor having in his hands obligations of third persons due the principal, fails to take the necessary steps to collect the same until they become worthless."" In such cases the surety or guarantor should be discharged, to the extent of their injury caused by the negligence of the creditor, which would be the ascertained value of the property at the time the lien could have been made effective by filing, or the amount that could have been realized on the collateral, in ease the creditor had acted with due diligence. The rule in this class of cases, however, cannot properly be extended to cover loss by mere delay in enforcing liens, al- though the delay renders ineffective securities that might have been applicable to the debt if an earlier action had been taken. While the promisor may be discharged if the creditor fails to file a mortgage given him by the principal, yet he is not dis- charged by the failure of the creditor to foreclose the mort- al Burr vs. Boyer, 2 Neb. 265; N. Y. 121; Grisard vs. Hinson, 50 Teaff vs. Eoss, 1 0. S. 469; State Ark. 229; 6 S. W. 906; Sheldon vs. Bank vs. Bartle, 114 Mo. 276; 21 Williams, 11 Neb.. 272; 9 N. W. 86; S. W. 816; Sullivan vs. State, 59 Day vs. Elmore, 4 Wis. 190; Fuller Ark. 47; 26 S. W. 194; Capel vs. vs. Tomlinson, 58 Iowa 111; 12 N. Butler, 2 Sim. & Stu. 457 ; Wulff vs. W. 127. See also First National Jay, 7 L. E. Q. B. 756; Eedlon vs. Bank vs. Powell, 149 S. W. 1096. Heath, 59 Kan. 255 ; 52 Pac. 862. In this case creditor sold property Contra — ^Philbrooks vs. McEwen, to the principal, reserving title in 29 Ind. 347. himself until paid for, taking the iizKemmerer vs. Wilson, 31 Pa. notes of the principal with the de- 110; Fennell vs. McGowan, 58 Miss, fendant as guarantor. It was held 261 ; City Bank vs. Young, 43 N. H. the creditor was under no obliga- 457; Douglass vs. Eeynolds, 7 Pet. tions to protect the guarantor by 113; Grim vs. Fleming, 101 Ind. exercising his right to claim the 154; First National Bank vs. Kittle, property on default. 71 S. E. 109; 69 W. Va. 171. See also Meyers vs. Farmers State "3 Schroeppell vs. Shaw, 3 N. Y. Bank, 53 Neb. 824. Holding that a 446 : Howe Co. vs. Farrington, 82 failure by the creditor to seize prop- 142 THE LAW OF SUEETYSHIP. The duty of filing a mortgage results from the fact that the instrument which evidences the lien is within the sole custody and control of the creditor, with no opportunity open to the promisor to protect himself, but after the lien is created and made effective against intervening liens by filing, the promisor has the privilege of paying the debt and becoming subrogated to the rights of the creditor, thereby being placed in a position to prosecute his own foreclosure. Again, a creditor is under no obligations to take active meas- ures of selling securities pledged for the debt, although having notice of their probable depreciation by delay,^'* and having acquired a lien by judgment upon the property of the principal, the creditor may suffer the same to become dormant or expire by limitation without impairing his rights against the surety.^" The creditor is obliged to deal with the security in his hands in good faith and with the exercise of reasonable judgment Failure in either of these respects, if resulting injuriously to the surety, will amount to misconduct, and will release the surety. Such would be the case, where the creditor by collusion with the debtor permits, the property to be wasted. The prejudice to the surety under these circumstances does not come from mere delay, and the co-operation of the creditor in wasting the securities, even to a small extent, will taint the entire transac- tion, and place upon him the responsibility for the loss to the surety."' erty upon which he held a chattel the sheriff's deed so that a subse- mortgage to secure the debt, even quent mortgagee obtained a better when requested to do so by the lien. The surety was discharged to surety, will not release the surety. the extent of the loss suffered by Contra — GrifBth vs. Robertson, 15 reason of plaintiff's neglect. Hun 344. us Phares vs. Barbour, 49 111. 11* Sherry vs. Miller, 7 Lea 305; 370; Nichols vs. Burch, 128 Ind. Brick vs. Freehold Nat. Bank, 37 N. 324; 27 N. E. 737; Clopton vs. J. Law, 307. Spratt, 52 Miss. 251 ; Sitgreaves vs. 115 Kindt's Appeal, 102 Pa. 441; Farmers Bank, 49 Pa. 359. Crosby vs. VVoodberry, 37 Col. 1; In Robeson vs. Roberts, 20 Ind. 89 Pac. 34. 155, no levy was made under the But see Hendryx vs. Evans, 120 execution against the principal, but Iowa 310; 94 N. W. 853. By levy the property was taken out of the and sale of debtor's real estate plain- jurisdiction of the officers holding tiff acquired security for the debt, the writ by collusion between the but he failed to procure and record principal and creditor; the creditor SUEETYSHIP DEFENSES. 143 And so where the creditor sells the securities at a sacrifice, by failing to exercise good judgment in consummating the sale, or because of indifference to the rights of the surety, the dam- age resulting from such misconduct will be diargeajjle to the creditor/*' §100. Belease of securities by operation of law. If liens are lost by reason of the operation of law, although without the knowledge of the creditor, and without his co-oper- ation in any way, he must nevertheless be deemed responsible for the resulting damage to the surety. A sufficient reason for this wcfuld seem to be that the surety should not suffer loss on account of the operation of rules of law which do not in any way arise as a consequence of his own acts, or as a necessary result of his contract. If the creditor institutes legal proceedings for the collection of the debt, the negligence of the officers of the law, or the errors of the courts, must be considered as the act of his own thereafter seeking to hold the sure- ty, who was discharged to the extent of the property removed. It will not, however, be consid- ered as collusive or fraudulent for the creditor to direct the return of an execution without a levy, al- though the projjcrty of the principal is at hand upon which a levy might be laid. The creditor's duty is to exercise active diligence in perserving liens, but no such duty is imposed in acquiring liens. Smith vs. Erwin, 77 N. Y. 466; Farmers Bank vs. Eaynolds, 13 O. 85; Knight vs. Charter, 22 W. Va. 422; gum. merhill vs. Tapp, 52 Ala. 227; Jer- auld vs. Trippet, 62 Ind. 122; Craw- ford vs. Gaulden, 33 Ga. 173; Tho§102. Whatever releases principal will release the surety or guarantor. All defenses available to the principal may in general be resorted to in favor of the promisor in suretyship. If the principal has been released by the creditor, the surety or guarantor will be released.^^" This follows from the ele- mentary proposition of suretyship, that no collateral promise to pay the debt of another can have any force when the debt of the other has been satisfied, and since the equity of the prom- isor to have indemnity from the principal is cut off by this transaction,' it would be manifestly unjust to require him to pay the debt. The reason which underlies "the rule discharging the surety upon the release* of the principal does not apply, if the creditor, in his agreement to release, specifically reserves his remedies 393 : Hollingaworth vs. Tanner, 44 12= Commercial Bank vs. Hennin- Ga. ll;-Baubien vs. Stoney, 1 Speers ger, 105 Pa. 49'6; German Bank vs. Eq. (S. C.) 508; Perrine vs. Fire- Foreman, 138 Pa. 474; 21 Atl. 20; man's Ins. Co., 22 Ala. 575. Mechanics Traders Bank vs. Seitz, 124 Strong vs. Foster, 17 C. B. lijO Pa. 632; Home Bank vs. New- 201; Nat'l Bank vs. Peck, 127 Mass. ton, 8 Til. App. 563-. 24 Atl 3!i6; 298; Voss vs. German Bank, 83 111. Pursifull vs. Pineville Banking Co., 599; Nat'l Bank of Newburgh vs. 9i7 Ky. 194; 30 S. W. 203; Turner Smith, 66 TST. Y. 271; Second Nat'l vs. Hampton, 30 Ky. Law Rep. 179; Bank vs. Hill, 76 Ind. 223; Martin 97 S. W. 761. vs. Mechanics Bank, 6 Har. & John. 125a Lowe vs. Eeddan, 123 Wis. 235; People's Bank vs. Le?r"nd, 103 90; 100 N. W. 1038. Pa. 309 ; First Nat'l Bank vs. 120 Cragoe vs. Jones, L. R., 8 Ex. Shreiner, 110 Pa. 188; 20 Atl. 718; 81; Ex parte Smith, 3 Bro. C. C. 1; Bank vs. Peltz, 176 Pa. 513-35 Atl. Grundy vs. Mei^han, 7 Ir. L. Rep. 218; Citizens Bank vs. Elliott, 59 519; Bull vs. Coe, 77 Cal. 54: 18 Pae. 1102; 9 Kans. App. 797; Bank P-c. 808; Trotter vs. Strong, 63 111. vs. Booze, 75 Mo. App. 189: Bank 272; Piano Mfg. Co. vs. Parmenter, vs. Jeffs, 15 Wash. 230; 46 Pac. 41 111. Anp. 635; Jamieson vs. 247; Davenport vs. ^State Banking Holm, 69 111. App. 119; Anthony vs. Co., 126 Ga. 136; 54 S. E. 977; Capel, 53 Miss. 3.50: Brown vs. ?;iA-st National Bank vs. Powell, 149 Aver, 24 Ga. 288 ; Eiggin vs. Creath, S: W. 1096. 60 0. S. 114; 53 N. E. 1100: Paddle- Oorainir— McDowell vs. Bank, 1 ford vs. Thacher, 48 Vt. 574; State Harringt. 369. vs. Parker, 7'2 Ala. 181; Locfcwood vs. Penn, 22 La. Ann. 29. STJBETTSHIP DEFENSES. 147 against the surety, because the principal by accepting such con- ditional release, thereby impliedly assents that the surety's right of indemnity shall not be impaired, and the surety not being injured should not be discharged/''' Neither will tlie surety be discharged if he is fully indemnified in the transac- tion."" §103. Same subject — Belease of principal by operation of law. Whenever the law will decree the annulment of the principal contract by reason of the fault or procurement of the creditor the surety or guarantor may set up the same defense. If the main contract is void by reason of a prohibition im- posed by statute, so that the principal can not be held, the prom- i2Tit has been considered that a release of the principal, even re- serving rights against the surety, should operate to discharge the sure- ty, unless the so-called release is con- strued, by application of », fiction, to amount to a mere covenant not to sue, thus leaving the principal con- tract in force, but without any right of action upon it. Price vs. Barker, 4 EUia & Black- burn 760, Coleridge, /. ( p. 776 ) : "To entitle the plaintiff to our judgment, it must appear that the deed oper- ated only as a covenant not to sue, and that the rights of the plaintiff as against the surety were preserved by the particular reservation in question, notwithstanding such cove- nant not to sue. "With regard to the first ques- tion, two modes of construction are for consideration. One, that, ac- cording to the earlier authorities, the primary intention of releasing the debt is to be carried out, and this subsequent provision for re- serving remedies against co-obligors and co-contractors should be re- jected as inconsistent with the in- tention to release and destroy the debt evinced by the general words of release, and as something which the law will not allow, as being repug- nant to such release and extinguish- ment of the debt. The other, that, according to the modem authorities, we are to mould and limit the gen- eral words of the release by con- struing it to be a, covenant not to sue, and thereby allow the parties to carry out the whole of their in- tentions by preserving the rights against parties jointly liable: .... and we think that we are bound by modern authorities to carry out the whole intention of the parties as far as possible, by holding the pres- ent to be a covenant not to sue, and not a release." Nevill's Case, 6 Ch. 43; Ex parte Gifford, 6 Ves. 805; Bateson vs. Gosling, L. E., 7 C. P. 9; Rockville Bank vs. Holt, 58 Conn. 526; 20 Atl. 669; Mueller vs. Dob- schuetz, 89 111. 176; Boatmen's Bank vs. Johnson, 24 Mo. App. 316 ; Brown vs. Vermont Mutual Fire Ins. Co.. 83 Vt. 161; 74 Atl. 1061. 128 Jones vs. Ward, 71 Wis. 152; 36 N. W. 711; Moore vs. Paine, 12 Wend. 123. 148 THE LAW OF SURETYSHIP. isor in suretyship will be discharged. Not merely because tne promisor's right of indemnity is impaired but the collateral contract being executed with the intent of re-inforcing the main contract, partakes of its character, and is illegal.^^" "Wbere the main contract is the result of duress practised by the creditor upon the principal, no recovery can be had against the surety or guarantor.^^" Also where the contract between the principal and creditor fails by reason of a want of consideration, the collateral surety- ship contract also fails.^^^ If the principal contract is obtained by the fraud of the creditor, the accommodation party, may avoid his undertaking.^'^ If within the time allowed for the completion of a certain work the obligee makes it impossible for the contractor to perform the work there can be no recovery against the surety of the contractor.^'^" A judgment against the creditor in an action against the principal is conclusive against the creditor in a subsequent action against the surety or guarantor.^'' If the creditor having judgment against the surety, subse- quently brings action against the principal, and fails to recover judgment, the surety inay have the judgment against him set aside, since the princip^al liability has been extinguished by operation of law; and it is of no importance that the surety failed to plead a proper defense, or was negligent in asserting his rights; a subsequent adjudication in favor of the principal is under all circumstances available to the surety.^'* 129 Swi£t vs. Beers, 3 Denio 70; i3i Sawyer vs. Chambers, 43 Barb. Morse vs. Hovey, 9 Paige 197; Bus- 622; Scroggin vs. Holland, 16 Mo. sell VB. Failor, 1 O. S. 327; Mound 419; Gunnis vs. Weigley, 114 Pa. vs. Barker, 71 Vt. 253; 44 Atl. 346. 191; 6 Atl. 465. isoOsborn vs. Robbins, 36 N. Y. i32 Putnam vs. Schuyler, 4 Hun 365; Ante Sec. 14. 166; Bryant vs. Crosby, 36 Me. 562; It is held that duress is a personal Parshall vs. Lamoreaux, 37 Barb, defense, and that duress of the prin- 189. cipal will not avoid the obligations isao People of Porta Eico vs. Title of a surety, unless the surety at the Guaranty & Surety Co., 227 U. S. time of executing the obligation was 382; Hubbard vs. Eeilly, 98 N. E. ignorant of the circumstances which 88fi, 51 Ind. App. 19. render it voidable by the principal. is3 State vs. Parker, 72 Ala. 181; If the surety has knowledge of the Baker vs. Merriam, 97 Ind. 53S; duress, he knows that he has no State vs. Goste, 36 Mo. 437; Stoops remedy apainst the principal, and it vs. Wittier, 1 Mo. App. 420; Brown is not therefore misled. lHazard vs. vs. Bradford, 30 Ga. 927; Grim vs. Griswold, 21 Fed. Rep. 178; Gra- Wilson, 61 Miss. 233; Gill vs. Mor- ham vs. Marks, 98 Ga. 67; 25 S. E. ris, 11 Heisk. 614. 931. 134 Ames vs. Maclay, 14 la. 28'1; SUEETYSHIP DEFENSES. 149 y §1M> Same subject — In oases where the release by operation of law is not the result of the fault or procurement of the credltur. If tiio defense of the principal is personal, and disconnected with any act or fault of the creditor, the liability of the surety or guarantor is not impaired. If the principal is incapacitated by reason of coverture, such defense is not available to the promisor in suretyship ^^^ and this seems to be the rule whether the promisor has knowledge of such incapacity at the tinie he signs or not. If the principal is insane at the time of the execution of the main contract, and the creditor has. no knowledge of the inca- pacity, it constitutes a personal defense available only to the principal.^^° But if the principal is incapacitated by insanity after the execution of the contract, and before default, it is held to discharge the surety.**^ The same rule is applied where the principal is an infant; the surety or guarantor is presiuned to have contracted against such disability, and this defense can only be set up by the infant Norris vs. Pollard, 75 Ga. 358; vis vs. Statts, 43 Ind. 103; Whit- Dlckason vs. Bell, 13 La. Ann. 249; worth vs. Carter, 43 Miss. 61; Lo- Miller vs. Gaskins, Sm. & M. Ch. baugh vs. Thompson, 74 Mo. 600; (Miss.) 524. Allen vs. Berryhill, 27 la, 534; Weed iss Winn vs. Sanford, 145 Mass. Sew. Mach. Co. vs. Maxwell, 63 Mo. 302; 14 N. E. 119, Devens, J.: 486; Wiggins' Appeal, 100 Pa. 155; " It is true, as a general proposition, Davis vs. Commissioners, 72 N. C. that the liability of a. guarantor or 441 ; St. Albans Bank vs. Dillon, 30 of a surety is limited by that of Vt. 122; Gates vs. Tebbetts, 83 Neb. his principal. But to this there 573; 119 N. W. 1120. are certain exceptions. Thus, where 13« Lee vs. Yandell, 60 Tex. 34 ; the principal is excused from liabil- 6 S. W. 665. ity for reasons personal to himself, »3' Grove vs. Johnstone, L. R. 24 and which do not affect the debt he Ir. 352; Fuller vs. Davis, 1 Gray has incurred or the promise he has 612. made, the surety would not be enti- In tliis case the principal gave tied to the benefit of this excuse. ^ond for his appearance on a crim- In such case, he is, in a certain inal charge and afterwards became sense, an independent promisor, and insane and was committed to a must perform his promise." lunatic asylum, and the surety upon Kimball vs. Newell, 7 Hill 116; t^e bail bond was discharged. Erwin vs. Downs, 15 N. Y. 576; Da- B"* «^ ^^^^"^ ^^ State, 35 Ark. 517. 150 THE LAW OF SXJEETYSHIP. himself/'' except in eases where the infant disaffirms the eon- tract, and the consideration is restored to the creditor.^''" Where the main contract is Ultra Vires, and on that account void, and a third party signs as surety or guarantor, with fcaowledge of the character of the principal contract, he will be bound."' If the contract between the principal and the creditor is in- complete, and on that account is declared invalid, the surety who has knowledge, or means of knowing of such infirmity in the contract at the time he signs, will be liable. Such a case would be where a partner signs a firm name without authority, or one of several joint obligors fails to sign.^*" §105. Suretyship obligations obtained by fraud of the creditor. A promisor in suretyship may avoid his contract for a fraud- ulent misrepresentation of facts by the creditor, by which he was induced to make the contract.^*^ It is not necessary that the creditor have knowledge of the falsity of the representation which he makes. It is the falsity of the statement, not the motive of the creditor, which has injured the surety.^*^" Secret stipulations entered into between the creditor and principal, of which the promisor has no knowledge, and which make the real contract different from that which it purported to be, are a fraud upon the surety or guarantor. Thus the prin- cipal was indebted to the creditor, and purchased with another as guarantor, inerchandise from the creditor, at a price higher than the market price, with the understanding that the excess above the market price, was to be applied to the dischai^e of , the old debt. This arrangement, not communicated to the issKuns vs. Young, 34 Pa. 60; Mass. 72, dissenting opinion, WelU, Baker vs. Kennett, 54 Mo. 82. J.; Stewart vs. Behm. 2 Watts. 356 isso Keokuk County Bank vs. (Semble). Hall, 106 Iowa 540; 82 N. W. 552. i" Allen vs. Houlden, 6 Beav. 148; i39Yorkshire Railway Wajon Co. Tvans vs. Keeland, 9 Ala. 42; Fish- vs. Maclure, L. R., 19 Ch. 478; burn vs. Jones, 37 Ind. 119; Fenter Weare vs. Savryer, 44 N. H. 198; vs. O'baugh, 17 Ark. 71; Marcbman Mason vs. Nichols, 22 Wis. 360; vs. Robertson, 77 Ga. 40; Water- Holm vs. Jamieson, 173 111. 29i5; 50 bury vs. Andrews, 67 Mich. 281; 34 N. E. 702. N. W. 575; Anite Sec. 15. 1*0 McLaughlin vs. McGovern, 34 i*ioBank vs. Eichmorfd, 235 Mo. Barb. 208; Sterns vs. Marks, 35 532; 139 S. W. 352. Barb. 565; Russell vs. Annable, 109 SURETYSHIP 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 the 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 practiced 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.^** 1*2 Pidcock vs. Bishop, 3 Barn. & Cr. 605. 143 Weed vs. Bentley, 6 Hill 56; Pendlebury vs. Walker, 4 Younge & C. Ex. 424. Powers Dry Goods Co. vs. Harlin, 68 Minn. 193; 71 N. W. 16. In tMs case the principal made settlement with his creditors for a composition at 33 1-3 per cent., and with one of the crevlitors he made a secret agree- ment to pay a larger sum. The surety upon the note of the creditor making this secret arrangement, was held to be discharged. The Court said: "The object of that agree- ment was to release the debtors from a portion of their indebtedness, and the sureties entered into their con- tract for this purpose, induced so to do by the representations and belief that the debtors were to be freed and released from any further lia/- bility. In this they were deceived, and through the concealment of the plaintiff, payee of the notes, the ob- ject was not attained. By reason of the fraud it was within the power of innocent creditors to ig- nore the composition,, and recover the balance due upon their claims. The ability of the debtors to meet their notes or to indemnify the sure- ties was hazarded and impaired at once by the contingency." But see Mead vs. Merrill, 30 N. H. 472; Booth vs. Storrs, 75 111. 438. 1** Trammell vs. Swan, 25 Tex. 473; Ham vs. Greve, 34 Ind. 18; Ha worth vs. Crosby, 120 Iowa 612; 04 N. W. 1098; Machin vs. Pruden- tial Trust Co., 210 Pa. 253; 59 Atl. 1073 ; Atlantic Trust & Deposit Co. vs. Union Trust Co., 110 Va. 286; 67 S. E.- 182; Ward vs. National Surety Co., 152 S. W. 397; 167 S W. 579. In this case the surety was in- duced to sign th,e note on the repre sentation that it was in payment for goods then being sold to the principal, but in fact, it was in settlement of a pre-existing debt. 152 THE LAW OF SUEETySHIP. no6. Same subject — the creditor. Concealment or non-disclosure of facts by A conoealment 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 conr cerning the principal 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 promisbr 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 sufficient if the non-disclosure is oonstruo- 141! Ante Sec. 15. "e Bank vs. Anderson, 65 la. 692 ; 22 N. W. 929; Kemington Sew. Mach. Co. vs. Kezertee, 49 Wis. 409; S N. W. 809; Harrison vs. Lumber- men Ins. Co., 8 Mo. App. 37 ; Barnes vs. Century Savings Bank, 128 N. W. 541; 149 la. 367; Putney vs. .Schmidt, 120 Pao. 720; 16 N. M. 400; Lauer Brewing Co. vs. Riley, 195 Pa. 449; 46 Atl. 71; Damon vs. Empire State Surety Co., 161 App. Div. 875. Benton Co. Bank vs. Boddicker, 105 la. 548 ; 75 N. W. 632, BoUn- son, J.: "The contract of surety- ship ia, 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 bo, without a sufficient excuse for his neglect, the surety will be discharged to the extent to which he suffers, by reason of the lack of good faith on the part of the creditor. If* the surety applies to the creditor for information respecting the princi- pal which the creditor has, and may properly give, but which he with- holds without sufficient cause, or if he knowingly give false information, he, and not the surety should suffer the loss occasioned by the wrong." "T Railton vs. Mathews, 10 iClark & Fin. 934, Lord Camphell: "If the defenders (creditor) had facts within their knowledge which it was material the surety should be ac- quainted with, and which the defend- ers did not disclose, in my opinion the concealment of those facts, the undue concealment of those facts, discharges the surety; and whether they concealed those facts from one motive or another, I apprehend is wholly immaterial. It certainly is wholly immaterial to the interest of the surety, because to say that his obligations shall depend upon that which was passing in the mind of the party requiring the bond ap- pears to me preposterous; for that would' make the- obligations of the surety depend on whether the other party had a good memory, or whether he was a person of good S0EETTSHIP DEFENSES. 153 tively fraudulent, and the preponderance of authority estab- lishes such fraud from the mere failure to disclose material facts."* The creditor can not avoid his duty in this respect, by main- taining an opinion that the undisclosed facts were not luaterial, any more than a surety could be released because he was willing to say that he considers the imdiselosed facts material, and would not have signed had he known the facts. In both cases, the question of materiality is to be adjudicated and not merely asserted by the parties. sense, or whether he had the motive in his mind, or whether he was aware that those facts ought to be disclosed. The liability of a surety must depend upon the situation in ■which he is placed, upon the knowl- edge which is communicated to him of the facts of the case, and not up- on what was passing in the mind of the other party, or the motive of the other party. If the facts were such as ought to have been communi- cated, if it was material to the sure- ty that they should be communi- cated, the motive for withholding them, I apprehend, is wholly im- material." Fidelity & Deposit Co. vs. Moshier, 151 Fed. 806; London General Omnibus Co. vs. HoUoway, 2 K. B. 72 (1912). 148 Bellevue Loan & Bldg. Ass'n vs. Jeckel, 46 S. W. Rep. (Ky.) 482; Dinsmore vs. Tidball, 34 0. S. 411; Wells, Fargo & Co. vs. Walker, 9 N. M. 456; Conn. Life Ins. Co. vs. Chase, 72 Vt. 176; 47 Atl. 825; Wil- son vs. Montieello, 85 Ind. 10; Fass- nacht vs. Emsing Gagcn Co., 18 Ind. App. 80; Traders' Ins. Co. vs. Her- ber, 67 Minn. 106; 69 N. W. 701; Denton vs. Butler, 99 Ga. 264; 25 S. E. 624; Third Nat'l Bank vs. Owen, 101 Mo. 558; 14 S. W. 632; Fire, etc.. Assurance Co. vs. Thomp- son, 68 Cal. 208; 9 Pac. 1; Indiana & Ohio Live Stock Ins. Co. vs. Bender, 32 Ind. App. 287; 69 N. E. eS'l. Contra — ^Lake vs. Thomas, 84 Md. 608 ; 36 Atl. 437. Hamilton vs. Watson, 12 Clark & Fin. 109, Lord Campbell: "If such was the rule, it would be indispen- sably necessary for the bankers to whom the security is to be given to state how the account has been kept ; whether the debtor was in the" habit of overdrawing; whether he was punctual in his dealings; whether he performed his promises in an, honorable manner — for all these things are extremely material for the surety to know. But unless the questions be particularly put by the surety to gain this information, I hold that it is quite unnecessary for the creditor, to whom the surety- ship is to be given, to make any such disclosure." North British Ins. Co. vs. Lloyd, 10 Excq. 523, holding that the re- quirement of disclosure without in- quiry incident to coiitraots of in- surance does not apply to contracts in suretyship, distinctly rejecting the doctrine in this respect an- nounced in Owen vs. Homan, 3 Mac. & G. 378; Davies vs. London & P. Marine Ins. Co., L. R., 8 Ch. Div. 469 ; Magee vs. Manhattan Life Ins. Co., 92 U. S. 93; San Francisco vs. Staude, 92 Cal. 560; 28 Pac. 778. A non-disclosure of the insolvency of the principal, is generally held not to amount to a fraud. Ham vs. Greve, 34 Ind. 18; Farmers Bank vs. Braden, 145 Pa. 473; 22 Atl. 1045. 154 THE LAW OF SUEETYSHIP The surety or guarantor will not be discharged, however, if the undisclosed facts were not known to the creditor. Fraud will not be imputed because the creditor by reason of negli- gence or inattention to his own affairs, does not know of the facts which materially affect the surety risk.^*' It has been held that where the facts are known to the cred- itor, arid materially affect the risk of the promisor, that the creditor can not evade his duty of disclosure, merely by showing that the suretyship promise was solicited by the principal, and that the creditor had no commimication with tbe promisor, and that no opportunity for disclosure was afforded. The accept- ance of the promise under such circumstances, is considered as an implied misrepresentation that only the ordinary risks of suretyship were being assumed.^^" 149 Lieberman vs. First Nat'l Baink, 40 Atl. Eep. 382; Tapley vs. Martin, 116 Mass. 275; Franklin Bank vs. Stephens, 39 Me. 532; Farmington vs. Stanley, 60 Me. 472; Wayne vs; Bank, 52 Pa. 343 ; Ana- heim Co. vs.- Parker, 101 Cal. 483; 35 Pao. 1048; Bowne vs. Mt. Holly Bank, 45 N. J. 360; Savings Bank vs. Albee, 63 N. H. 163; Hudson vs. Miles, 185 Mass. 582; 71 N. E. 63; Brillion Lumber Co. vs. Barnard, 131 Wis. 284; 111 N. W. 483. But see Graves vs. Bank, 10 Bush (Ky.) 23. 150 Lee vs. Jones, 17 C. B. (N. S.) 482; distinguishing Hamilton vs. Watson, and North British Ins. Co. vs. Lloyd, TJbi Supra. In this case the bond was arranged for by the principal. The surety had no com- munication with the creditors. The forni of the bond was prepared by the creditors, and it recited that the principal had been for some time in their employ, and that they had required him to give a bond as a condition of continuing in their em- ploy. The creditors sent a messen- ger to receive the bond who had no authority to make disclosures or an- swer inquiries. The principal was in default for a large amount at the time the bond was executed as was well known to the creditors. These circumstances were held to constitute a fraud by the creditors on the surety. Blacklurn, J.: "I think thatp-reat practical mischief would ensue if the creditor were by law required to dis- close everything material known to him, as in a case of insurance. If it were so, no creditor could rely upon a contract of guarantee unless he communicated to the proposed sureties everything relating to his dealings with the principal, to an extent which would in the ordinary course of things be so vexatious and annoying to the principal and his friends, the intended sureties, that such a rule of law would practically prohibit the obtaining of contracts of suretyship in matters of business. This is well pointed out by Iiord Campbell in his judgment in Hamil- ton vs. Watson. But I think, both on authority and on principle, that, when the creditor describes to the proposed sureties the transaction proposed to be guaranteed (as in general a creditor does), that de- scription amounts to a representa- tion, or at least is evidence of a representation, that there is noth- ing in the transaction that might not naturally be expected to take place between the parties to the transaction such as that described, and, if a representation to this ef- fect is made to the intended surety by one who knows that there is something not naturally to be ex- pected to take place between the parties to the transaction, and that this is unknown to the person to whom he makes the representation, and that, if it were known to him, le would rot enter into the contract of suretyship, I think it is evidence of fraudulent representation on his part In the present case, the plaintiffs had no personal com- SURETYSHIP DEFENSES. 155 In the absence of specific inquiries no duty rests upon the? creditor to disclose what he knows concerning the irregularity of the principal in his conduct growing out of other transac- tions than the one which is the subject of the suretyship.^"^ Unauthorized statements made to the surety by agents of the creditor which induce the surety to sign the bond will not bind the creditor in the absence of any ratification by the creditor."^" munication with the defendant, the surety; and when they sent the agreement to him for execution, they sent it by an agent who had no authority from the plaintiffs to make any statement whatever, or to do anything more than obtain the defendant's signature to the agree- ment thus sent. "The argument for the plaintiffs before us was, in substance, that, under such circumstances, though there might be a concealment or non- disclosure of material facta, there was not and could not be any mis- representation on the plaintiffs' part; and that, without it, there could be no fraud Now, whether the handing the agreement by the plaintiffs to the defendant amounted to an inaccurate repre- sentation or not, depends, as I think, on the question whether in such a transaction as that described in the agreement, it might or might not naturally be expected that the masters might have allowed a bal- ance of this extent to accumulate, and might have allowed the account to stand over unsettled for so long a time The improbability that anyone could suppose that sure- ties would have entered into such an agreement if they had known the truth, is so great that the jury might well think that the plaintiffs knew that the defendant was in ig- norance of it." See also Sooy vs. State of New Jersey, 39 N. J. L. 13.5, where a bond of the Treasurer of the State wSis accepted, without any communi- cation between the parties, except that the State furnished the form of bond. The fact of previous defalca- tions being known to the State, it was held to be a fraud not to dis- close this to the surety, and it is placed upon the ground that the continuance of the Treasurer in of- fice amounts to a tacit assertion by the State that his past conduct was regular, and that on this account, the silence of the State was equiva- lent to deceit. But see Cawley vs. People, 95 111. 249; Aetna Co. vs. Mabbett, 18 Wis. 608. In Julius Winter & Co. vs. For- rest, 145 Ly. 581; 140 S. W. 1005, Lassing, J.: "Clearly, if the obligee had nothing whatever to do with the execution of the bond, and the surety was induced by the employe alone to sign the bond, without the knowledge of his principal and in the absence of the principal, it would be a manifest injustice to hold the bond invalid as to the surety be- cause the principal had not disclosed to him such facts as he may have known bearing upon the employe's honesty and integrity, for no oppor- tunity was given to him to make such disclosure. In such case, if the surety wants the protection of the law, he must give to the obligee ati opportunity to make disclosures relative to any fact touching his employe's honesty, reliability, etc., within his knowledge, and until such opportunity is given it must be pre- sumed, and conclusively .presumed, that the surety is satisfied to act upon his own initiative, or such in- formation as the obligor gives him; and in such cases the surety may not escape liability on the ground that the obligee failed to disclose to him information possessed by the obligee at the time, which if given, would have increased the risk of the surety and possibly prevented him from signing the bond." 151 Bostwick vs. Van Voorhis, 91 N. Y. 353; Screvnnen vs. Smith, 70 Tex. 168; 7 S. W. 793; Home Ins. Co. vs. Holway, 55 la. 571; 8 N. W. 457 15111 Ida County Sav. Bank vs. Seidensticker, 92 N. W. 863; 128 la. 54; Watertown Sav. Bank vs. 156 THE LAW OF SUEETYSHIP. §107. Discliarge of promisor by failnre to disclose facts coming to the knowledge of the creditor, after the execution of the contract. The requirement of good faith continues after the execution of the contract, and the creditor owes a duty to the promisor, in a continuing or executory contract of suretyship, to disclose to him such acts of the principal, as materially affect the prom- isor's risk, and for which, the creditor himseM might put an end to the main contract Such duty of disclosure rests upon the theory, that the cred- itor who receives advancements from the principal on the credit of a guarantor, or continues the principal in his service for whose honraty another has become surety^ with knowledge that the principal has violated his agreement or is unworthy of trust, actively conspires to assist the principal in committing a de- fault, and that such conduct contains the same elements of fraud as the concealment of similar facts at the time of the exe- cution of the contract. '^'"' This rule, however, can not be applied without manifest in- justice, except in those cases where the default is such that the creditor can put an end to the contract, and so avoid loss incir dent to future advancements, or a further continuance of the principal in his service. Where there is a continuing guaranty for future delivery of merchandise, if the principal becomes insolvent, the creditor can not on that account refuse to ship the goods, since the inability of a party to perform his contract, in the absence of fraud, is not a ground for rescission, and a failure to disclose these facts to the guarantor, violates no implied duty, as Mattoon, 78 -Conn. 388; 62 Atl. 622; L. R., 4 Ir. 397; Conn. Insurance see also Hogue vs. State, 28 Ind. Co. vs. Scott, 81 Ky. 540; Roberts App. 285; 62 N. E. 656; American vs. Donovan, 70 Cal. 108; 9 Pac. Ins. Co. vs. Pauley, 170 U. S. 133; 180; 11 Pae. 590; Saint vs. Wheeler, Sherman vs. Harbin, 125 Iowa 174; 95 Ala.' 362; 10 Eouth. 539; Eapp 100 N. W. 629; Sewell vs. Breathitt vs. Phoenix Co., 113 III. 300; Hebert Tx)dEe, 150 Ky. 542; 150 S. W. 677. vs. Lee, 118 Tenn. 133; 101 S. W. !■" Phillips vs. Foxall, L. E., 7 176. Q. B. 666; Sanderson vs. Aston, L. Put see Pittsburg, etc., Ey. Co. R., 8 Exch. 73; Enright vs. Falvey, vs. Shaeffer, 59 Pa. 350. SUEETTSHIP DEFENSES. 157 the creditor is not obliged to use any such diligence in taking care of the interests of the guarantor. While such information woij^d he useful to the promisor in enabling him to watch the affairs of the principal, yet, the duty of disclosing these facts, can rest upon no other basis than that of the giving of notice to the promisor of non-payment at ma- turity, which can only be required where the contract, either expressly or by implication, so' recites/"" Neither should the creditor be required to give notice to the promisor of a mere breach of contract on the part of the princi- pal, although such conduct might materially affect the risk. Thus an agent of an Insurance Co. gave bond that he would perform his duties as such agent as required by the by-laws of the Company. One of the by-laws provided that he should pay each month the balance due the Company, and it was held that the Company owed no duty to the surety to disclose the default of the Agent in failing to pay over tbe balances from month to month, where no fraud or dishonesty by the agent was shown, even though the default of the agent was of such a character as to authorize his discharge by the Company.^^* The surety upon such a bond would be liable for a default occasioned by sickness or accident or any other merely ca.sual circumstances, yet the creditor loses none of his rights against the surety by indulging the principal in such default to the end of his contract, and omitting notice to the promisor of the de- faults as they occur."^ If the acts of fraud or 'dishonesty by the principal, are not known to the creditor, the duty of disclosure does not apply even though the creditor, by the exercise of ordinary diligence, 153 Ante See. 69. See also Mtna. Co. vs. Fowler, 108 1"* Watertown Fire Ins. Co. vs. Mich. 557; 66 N. W. 470; Lanea- Simmons, 131 Mass. 85. ■ shire Co. vs. Callahan, 68 Minn. But see Morrison vs. Arons, 65 277 ; 71 N. W. 261 ; Charlotte R. R. Minn. 321; 68 N. W. 33; Fidelity Co. vs. Gow, 59 Ga. 685; Wilkerson Mutual Life Assn. vs. Dewey, 54 L. vs. Crescent Co., 64 Ark. 80; 40 S. R. A. 945 (Minn.). W. 465; Phoenix Ins. Co. vs. Find- »B MeKeeknie vs. Ward, 58 N. Y. ley, 59 la. 591; 13 N. W. 7.38; 541; Atlantic & Pacific Telegraph Wilmington R. R. Co. vs. Ling, 18 Co. vs. Barnes, 64 N. Y. 385. S. C. 116. 158 THE I^W OF SUEETYSHIP. might tave discovered the default Such diligence need not be exercised in the interest of the surety or guarantor.^"* The promisor will not be discharged because the creditor conceals from him misconduct of the principal which is not directly, connected with the subject matter of the suretyship.^" §108. Fraud and miscondnct of the principal. A suretyship contract induced by the fraud of the principal is nevertheless valid as against the promisor in all cases in which the creditor has no knowledge of the fraud, and has not by his own conduct assisted in perpetrating the fraud.^°° Many cases have arisen in which a surety has reused to sign unless another will sign as co-surety, and the principal, to induce the making of the contract, forges the name of the co-surety. Two theories have obtained respecting the liability of the surety under these circumstances. One, that it is the duty of the creditor not to accept an obli- gation without such investigation as will disclose whether the signatures are genuine, that the surety signs upon the implied condition that no advancements will be made unless the con- tract is in fact what it purports to be, the valid obligation of all the parties, and that a creditor has no right to remain in passive ignorance as to the character of the contract he is ac- cepting."" The other, and by far the most generally accepted theory, and the one supported by the most satisfactory reasoning, is, that whether the signing by the surety is before or after the 156 Newark vs. Stout, 52 N. J. L. i^" Sharp vs. AUgood, 100 Ala, 35; Frelinghuysen vs. Baldwin, 16 183; 14 South. 16; Cornell vs. The Fed. Eep. 452; Phillips vs. Bossaxd, People, 37 111. App. 490; Southern 35 Fed. Eep. 99; Atlas Bank vs. Cotton Oil Co. vs. Bass, 126 Ala. Brownell, 9 E. I. 168. 343; 28 So. 576; Stone vs. Goldberg 1=7 LaRose vs. Logansport Bank, & Lewis, 6 Ala. App. 249, 60 So. - 102 Ind. 332; 1 N. E. 805. In this .744. In these cases the surety case the creditor is shown to have signed after the forgery. A much had knowledge of the excessive in- stronger case would seem to be made ■temperance of the principal, which where the surety signs before the was the approximate cause of his forgery, and so avoid the same defalcations. charge of negligence imputed to the 158 Ante Sec. 74, Note 8. creditor. Contra — W. T. Raleigh Medical Co. V8. Wilson, 60 So. 1001. SUEBTYSHIP DEFENSES. 159 forgery^ the paper comes to the creditor bearing a stamp of trust and confidence by the Surety in the principal, and the creditor should not suffer because of a breach of this confi- dence, but the loss should rather fall upon the one who held out the principal as worthy of trust.^"* A misrepresentation made to the promisor by the principal cannot prevail against the creditor who parts with a considera- tion in good faith, relying upon the surety, and without knowl- edge of the fraud. The creditor is not bound to investigate each transaction and ascertain whether the surety or guarantor has been deceived.^'^ If false representations, are made by a third person without the knowledge or procurement of the creditor, the promisor is not thereby released.^"" §109. Misconduct of the principal, by delivering suretyship obligations without complying with conditions. A creditor making advances in good faith, cannot be held responsible for a breach, by the principal, of conditions imposed by the surety or guarantor, not communicated to the creditor.**^" If a creditor accepts a contract upon which there is one surety, he cannot be deprived of his security because the surety signed upon the condition, expressed to the principal alone, 160 Stoner vs. Millikin, 85 111. vs. Trader's Deposit Bank, 55 S. W. 218; Stern vs. People, 102 111. 540; 552; 107 Ky. 653; Sewell vs. Wayne Co. vs. Cardwell, 73 Ind. Breathitt Lodge, 150 Ky. 542; 150 555; State vs. Hewitt, 72 Mo. 603; S. W. 677; Saginaw Medicine Co. Veach vs. Kice, 131 U. S. 293 ; 9 S. vs. Batey, 179 Mich. 661. Ct. 730; Chase vs. Hawthorn, 61 Bank of Australasia vs. Eeynell, Me. 505; Kansas City Terra Cotta 10 New Zealand L. R. 257. In thia Lumber Co. vs. Murphy, 49 Neb. 674 ; ease the guarantor was told by the 68 N. W. 1030 ; Vass vs. Riddick, 89 principal that the letter of credit N.,.C.6; Loewvs. Stocker, 68 Pa. 226. was for f500, and the guarantor 161 Marks vs. First Nat'l Bank, signed without reading, relyinig up- 79 '"•Ala. 550; Ladd vs. Board, 80 111. on the statement of the principal. 233 ; Davis Co. vs. Buckles, 89 111. The letter of credit was for £5,000, 237; Lucas vs. Owens, 113 Ind. 521; and the creditor made advancement 16 N. E. 196; Martin vs. Campbell, of the full amount without knowl- 120 Mass. 126 ; Pa^e vs. Krekey, 137 edge of the fraud. Held, that the N. Y. 307; 33 N. E. 311; Johnston guarantor was liable. vs. Patterson, 114 Pa. 398: 6 Atl. isalumber Co. vs. Buchtel, 101 746; Kuln vs. Brant, 162 Pa. 222; U. S. 638; Brown vs. Davenport, 76 29 Atl. 729 ; Quinn vs. Hard, 43 Vt. Ga. 799 ; Sewell vs. Breathitt Lodge, 375; Gromberg vs. Fidelity & De- 150 Ky. 542; 150 S. W. 677. posit Co., 139 Ala. ^38: 36 So. 622; i«2<» Seltz Brewing Co. vs. Ayres, Hudson vs. Miles, lffl,Mass. 582; 71 60 N. J. E. 190; 46 Atl. 535; Grit- N. E. 63: Ripley Bldg. Co. vs. Coors, man vs. U. S. F. & G. Co., 41 Wash. 37 Col. 78; 84 Pac. 817; Wheeler 77; 83 Pac. 6. 160 THE LAW OF SUEETTSHIP. that the obligation should not be delivered until another had signed as eo-surety. The estoppel against the promisor is clear ; he should not be heard to assert a defense which works an in- jury to another, and which is based upon his own neglect in failing to communicate the condition to the creditor.^*' Against this view has beem urged a somewhat technical ap- plication of the doctrine of Special Agency, with the conclusion, that since the surety authorizes the principal to mate delivery of the paper only on condition, and is a special agent, he can not bind his principal, the promisor, except within the strict terms of his agency/** If the body of the bond or other instrument contains the names of co-obligors whose names do not appear as signers, such circumstance is considered sufficient to put upon the cred- itor the burden of ascertaining whether the instrument is de- livered in acoordanpe with the understanding of the prom- isor. lesDair vs. United States, 16 Wall. 1 ; Tidball vs. Halley, 48 Cal. 610; Ward vs. Hackett, 30 Minn. 150; 14 N. W. 578; Matliis vs. Mor- gan, 72 Ga. 517 ; Rliode vs. McLean, 101 111. 467; Mowbray vs. State, 88 Ind. 324; Gibbs v. Johmsan, 63 Mich. 671; 30 N. W. 343; State vs. Churchill, 48 Ark. 426 ; 3 S. W. 352, 880; Lewiston vs. Gagne, 89 Me. 395; 36 Atl. 629; Micklewait vs. jSToel, 69 la. 344; 28 N. W. 630; North Atchison Bank vs. Gay, 114 Mo. 203; 21 S. W. 479; Brumbaek vs. German Bank, 46 Neb. 540; 65 N. W. 198; Kussell vs. Freer, 56 N. Y. 67; Vass vs. Riddick, 89 N. C. 6; Whltaker vs. Richards, 134 Pa. 191 ; 19 Atl. 501 ; Dun vs. Garrett, 93 Tenn. 650; 27 S. W. 1011; Billow vs. Wichita Co., 74 Tex. 339; 12 S. W. 48; Eelden vs. Hurlbut, 94 Wis. 562; 63 N. W. 357; Fuller vs. Du- pont, 183 Mass. 596; 66 N. E. 672; Baker County vs. Huntington, 46 Or. 275; .79 Pac. 187; Cowan vs. Rob- erts,' 134 N. C. 415; 46 S. E. 979; Hendry vs. Cartwright, 89 Pac. 309 ; Williams vs. Morris, 138 S. W. 464; 99 Ark. 319. Contra — Johnston vs. Cole, 102 la. 109; 71 N. W. 195. . It has been held that the delivery of the obligation by a stranger who holds it in escrow, and in violation of his trust, will bind the promisor, if the creditor accepts the same in good faith. Taylor Co. vs. King, 73 la. 153; 34 N. W. 774; McCormick Co. vs. McKee, 51 Mich. 426; 16 N. W. 796. 10* People vs. Bostwick, 32 N. Y. 445; King vs. State, 81 Ala. 92; 8 South. 159 ; Evans vs. Daughtry, 84 Ala. 68; 4 South. 592; State vs. Allen, 69 Miss. 508 ; 10 South. 473 ; W. T. Raleigh Medical Co. vs. Wil- son, 60 So. 1001. 165 Pawling vs. United SItates, 4 Cranch 219; Allen vs. Marney, 65 Indi 398; Hessell vs. Johnson, 63 Mich. 623; 30 N. W. 209; Ward vs. Churn, 18 Grat. 801; Baker County vs. Huntington, 46 Or. 275; 79 Pac. 187. Contra — Grim vs. Jackson Tp., 51 Pa. 219. See also Whitaker vs. Richards, 134 Pa. 191; 19 Atl. 501; Johnson vs. Weatherwax, 9 Kan. 75. When the names of the co-obli- SUEETYSHIP DEFENSES. 161 If the promisor delivers to the principal the obligation in an incomplete form, with authority to him to complete the in- atrument, he will be botmd, even though the blanks axe not filled in accordance with his directions/** In the absence 'of express authority it is held that the doc- trine of implied agency does not reach the amount of the pen- alty in the bond, and such blanks being filled by the principal, will not bind the surety.^*' gors appear in the body of the bond, but not as signers, but the bond was delivered without any condition that the others would sign. Held, not a defense. les Butler vs. United States, 21 Wall. 272; White vs. Duggan, 140 Mass. 18; 2 Atl. 110; Lee Co. vs. Welsing, 70 la. 198; 30 N. W. 481; Rose vs. Douglass Twp. 52 Kas. 451 ; 34 Pae. 1046; Greene Co. vs. Wil- hite, 29 Mo. App. 459; South Ber- wick vs. Huntress, 53 Me. 89; Wes- sell vs. Glenn, 108 Pa. 104. Fullerton vs. Sturges, 4 O. S. 529, Ranney, J.: "No rule is bet- ter settled, or founded upon stronger reasons, than that which affirms the liability of one intrusting his name in blank to another, to the full extent to which such other may see fit to bind him, when the paper is taken in good faith and without notice, actual or implied, that the authority given has been exceeded, or the confidence reposed has been abused. It has the effect of a, general letter of credit; and the rule is founded, not only upon the principle of general juris- prudence which casts the loss, when one of two equally innocent persons must suffer, upon him who has put it in the power of another to do the injury, but also upon that rule of the law of agency, which makes the principal liable for the acts of his agent, notwithstanding his private instructions have been disregarded, when he has held the agent out as possessing a more enlarged author- ity. These rules are indispensably necessary to prevent fraud and sur- prise upon third persons, and in their application to the usual course of dealing in commercial transae- tiMis, are to be considered as of vital importance." The earlier cases in Ohio held that instruments under seal, delivered in an incomplete form, could not be completed except in pursuance of a written authority, also under seal. Ayres vs. Harness, 1 O. 368; State vs. Boring, 15 0. 507. But private seals, were abolished in Ohio in 1884. See also Penn vs. Hamlett, 27 Gratt. 337; Cross vs. State Bank, 5 Ark. 525. 167 Famulener vs. Anderson, 15 0. S. 473; Rhea vs. Gibson, 10 Gratt. 215. A fortiori when filled by the creditor. Spring Garden Ins. Co. vs. Lemmon, 117 Iowa 691; 86 N. W. 35. See also Preston vs. Hull, 23 Gratt. 600, where the same rule was applied, where a blank for the name of the obligee was filled by the prin- cipal. 162 THE LAW OF STTEETYSHIP. §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 the subject of fraudulent misrepresentation. A promise or stipulation by the creditor that certain things will be done by himseK 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 basis 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 'i 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 known 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 misrepresesatation 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. B. 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. See also Fidel- 55 N. W. 161 ; Warner vs. Benjamin, ity & Deposit Co. vs. Moshier, 151 89 Wis. 290; 62 N. W. 179; Mooney F. 806. vs. Miller, 102 Mass. 217; Dawe vs. It is by application of this rule Morris, 149 Mass. 188; 21 Atl. 313; ^^^^ a- purchase of merchandise is Kobertson vs. Parks, 76 Md. 118; held to be constructively fraudulent 24 Atir 411; New Brunswick Land « the vendee has no reasonable cx- Co. vs. Convbeare, 9 H. L. 711. pectation of being able to pay for. 109 French vs. Ryan, 104 Mich, the merchandise at maturity. Tal- 625; 62 N. W. 1016. In this case ~" ^«- ^t^'^YT'o^n-n'/'xl^^' the representation was as to the fu- P^^^^l '«• ^'^^^^''' " <^'"- ^ J*"'" •^ (Md.) 220. SURETYSHIP DEFENSES. 168 this saf^uard, 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 firm 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- ment."* §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 maintained 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 I'o Benham vs. Assurance Co., 7 if, at the time tEey 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, "iGage vs. Iiewis, 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." ises were false 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 i'* Ante Sec. 68. could not positively be known that *" 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 examplei, that it is not to be delivered or not to take effect unless another signs as co-surety ; sudi 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 oo-surety signs. ^^* If the condition relates to the 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 exdude 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; Smith TS. Kirkland, 81 Ala. 345; 1 South. 276; Cowan vs. Baird, 77 N. C. 201; Read vs. MeLemore, 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. Biddle, 5 Craneh 351; M-irphy 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; Deardorflf vs. Foresman, 24 Ind. 481; Nash vs. Fugate, 24 Gratt. 202; Passumpsic Bank vs. Gross, 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-sureties were to sign. Ante Sec. 109. 1T5 Miller vs. Ridgely, 22 Fed. SUEETYSHIJ? DEFENSES. 16S Conditions imposed by law need not be set out in the con- tract ; thus where the law provides that no action shall be brought upon 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.^'® Rep. 889. Where the surety signed i7»Toles vs. Adee, 84 N. Y. 223. with the understanding that he The bond in this case 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. See also and two sureties. The surety signed Bank vs. Eichmond, 235 Mo. 532; with knowledge that the require- 139 S. W. 352. nients of the Statute were not to be 170 state vs. Dent, 121 Mo. 162; cimplied with, and consented that 25 S. W. 924. the bond should be delivered with- 1" Sharp vs. U. S., 4 Watts (Pa.) out complying with the Statute. 21. Held, Andrews, J. : " The evidence See also Cook vs. Freudenthal, 80 shows that the sheriflT declined at N. Y. 205, where the Statute as to first to take the undertaking in ques- the form of the bond was not com- tion, doubting his authority to do plied with. 178 State vs. Benton, 48 N. H. 651. 166 THE LAW OF SUEETYSHIP. §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 agreement 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 modified by amendment or judicial con- struction, so that the consideration of a suretydiip contract need not now be expressed in writing ^"' and the ordinary rules of construction, as applied to written instruments, do not maJie 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 o£Scial leo Ante Sec. 26, 27. authority. He simply, as the trans- isi Where there is a, promise ex- action is proved, consented at 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- plaintiff'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 Ey. Co., 141 accepted the undertaking, it became Ind. 5.5; 40 N. E. 67. operative and binding, not as a stat- i82 Campbell vs. Gates, 17 Ind. utory obligation, but as a common 126. law agreement between the parties, See also Port vs. Bobbins, 35 I». for the breach of which an action 208. wovild lie as upon any other assump- sit." STTEETYSHIP DEFENSES. 167 Where the induoement to the suretyship was that the cred- itor would dismiss a proceeding in bankruptcy against the prin- cipal, and such proceeding was not dismissed, it was- held to be a failure of consideration.^** A general promise of forbearance 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 coimtry, 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 appeaxing in the written contract, but merely the completion of a writing 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 heen held to restrict, in that 456. State, parol evidence from being re- 185 Rey vs. Simpson, 22 How. 341 ; eeived to establish any other con- Good vs. Martin, 95 U. S. 90 ; Green- tract. Spencer vs. AUerton, 60 ough vi. Smead, 3 O. S. 416; Sey- Conn. 410; 22 Atl. 778. mour vs. Mickey, 15 O. S. 515 ; Ful- A similar Statute in Pennsylva- lerton vs. Hill, 48 Kan. 558 ; 29 Pac. 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 see- In Connecticut a statute providing ond Indorser to first Indorser. that a blank indorsement imports Ante Sec. 10. 168 THE lAW OF SUKETYSHIP. eral obligors is a surety or guarantor, althougli he appears priiifla facie as maker."* §113. Belease of promisor by the creditor. While a promisor can not show by parol that the creditor agreed that the liability would be 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 place, yet, it is competent to show by parol or otherwise, that subsequent to the 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 principal 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 bound 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 sudi contract is at an end, since the prom- isor, in reliance upon the declaration, might at one© 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 J Davies vs. Barrlngton, 30 N. under seal does not appear to have H. 517 ; Mechanics Bank vs. Wright, affected the decision of the question S3 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 E. 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; FowIot Kirk, 41 Mo. App. 523. vs. Alexander, 1 Heisk. (Tenn.) 425; Contra — Shriver vs. Lovejoy, 32 Cole vs. Fox, 83 N. C. 463 ; Metznsr Cal. 574; Stroop vs. McKenzie, 38 vs. Baldwin, 11 Minn. 150. Tex. 132; Coots vs. Farnsworth, 61 is? Ante Sec. 111. Mich. 497; 28 N. W. 534. SUEETYSHIP 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 vievre can be fully justified in prin- eiple."» 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 by the principal, and such debtor, in consequence, changes his situa- tion, as by surrendering security, or forbebring to obtain secur- ity when he. might, or otherwise suffers loss by it, he is dis- charged. And although 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 ratiher bear the loss, than throw it upon one who has been misled by it." *"* A mere expression of opinion that the principal will pay and that the surety vrill probably not be called upon, will not re- lease the surety.*** 188 Harris vs. Brooks, 21 Pick. West vs. Brison, 99 Mo. 684; 13 S. 195. The basis of the holding in W. 95; Thornburgh vs. Madren, 33 this case was a verbal statement by la. 380; Auchampaugh vs. Schmidt, the creditor to the surety, that he 80 la. 186; 45 N. W. 567; Baker vs. would look to the principal for pay- Briggs, 8 Pick. 123; National Bank ment, and that the surety need not of Commerce vs. Gilvin, 152 S. W. trouble himself about it. This was 652; Wilkins v. Hanson, 119 Minn, considered as an exoneration of the 399; 138 N. W. 418. surety, without regard to any ques- The promisor is discharged only to tion of injury to him. the extent he was damaged. McAl- See also Whitaker vs. Kirby, 54 lister vs. Pitts, 58 Neb. 424; 78 N. Ga. 277. It seems, however, tliat W. 711. this case is based largely, if not al- i»o Shaw, C. J., in Carpenter vs. together, on the language of the King, 9 Met. 511. code, providing that a surety may isi Howe Mach. Co. vs. Farring- be discharged by any act of the cred- ton, 82 N. Y. 121 ; Brubaker vs. Oke- itor which "exposes him to greater son, 36 Pa. 519, Strong, J.: "It liability or increases his risk." Wil- never yet has been held, that a kinson v. Conley, 133 Ga. 518; 66 declaration of the creditor that the S. E. 372. princi^^al debtor was good enough. Contra — Michigan State Ins. Co. that t!:e surety was in no danger, vs. Soule, 51 Mich. 312; 16 N. W. ard that the debt would be collected 662. from the principal, without more 189 Bank vs. Haskell, 51 N. H. was sufficient to estop the creditor 116; Brooking vs. Bank, 83 Ky. 431; from proceeding against the surefy. 110 THE LAW OF SUEETYSHIP. §114. Belease 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 rights 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 cannot be insured if the creditor is permitted at will to release one or more of the co-promisors from their share of the burden of the joint undertaking. 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 be called upon to bear additional burdens on account of the discharge of others.^'* Such declarations are exceedingly ^"^ Bracton Lib. 1 Cap. 3, Sec. 20. common. They are often made to i»3 Post Chapter 10. induce the surety to go into the con- is4 Morgan vs. Smith, 70 N. Y. tract, and they are repeated after- 537; Lewis vs. Armstrong, 80 Ga. wards, without any design to mis- 402; 7 S. E. 114; Thomason vs. lead, or without being understood as Clark, 31 lU. App. 404; V/aggener a waiver of any rights. They are vs. Dyer, 11 Leigh (Va.) 384; Jemi- made and received as expressions of son vs. Governor, 47 Ala. 330; Eice opinion. They never invite confi- vs. Morton, 19 Mo. 263; Gordon vs. dence, nor is confidence often re- Moore, 44 Ark. 349 ; Smith vs. State, posed in them. Standing alone, they 46 Md. 617; Robinson, J.: "It will not discharge the surety." seems also to be well settled that the Michigan State Ins. Co. vs. Soule, release of one or more sureties with- 51 Mich. 312; 16 N. W. 662. See out the assent of the co-sureties will also Baldwin vs. Daly, 41 Wash, operate at law to discharge the lat- 416; 83 Pac. 724. ter, because it is a cardinal principle STTEETYSHIP BEFENSES. 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 gainst the principal, and was dischai'ged 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 re- leased."'' 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 of suretyship that the surety has the right to stand by the very terms of the contract, and the creditor will not be permitted to change or alter the contract without concurrence of all the parties to it. "In equity, however, the rule is different, 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 risk or liability "It is difficult to imagine on what principle it can be maintained in 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 sureties, it is clear that such release can in no manner prejudice or subject the co-sureties to an in- cresised risk." Ex parte Gifford, 6 Ves. 805; Hodgson vs. Hodgson, 2 Keen 704. In Oass County vs. American Ex- change Bank, 11 N. D. 238; 91 N. W. 59, a surety was wholly dis- charged where the name of one of five sureties who had signed a bond was erased after the defendant sure- ty had sigupd. iSee also Hilliboe vs. Warner, 118 N. W. 1047; 17 N. D. 594. 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. Eice, 15 Gray 557, Hoar, J.: "It is very clear that co-sureties are liable to contribution among themselves; and that the discharge of one of them from his principal obligation, if the others are not discharged, will not release him from the liability to contribute for their indemnity." (Lane vs. Moon, 103 S. W. 211. 105 Klingensmith vs. Klingen- smith, 31 Pa. 460; Trustees vs. Southard, 31 111. App. 359; Gordon vs. Moore, 44 Ark. 349, 358. See also Hallock vs. Yankey, 102 Wis. 411; 78 Hr. W. 156. But see Wright vs. Stockton, 5 Leigh (Va.) 153; Towns vs. Eiddle, 2 Ala. 694. Holding that the fail- ure to bring suit when requested by one surety, discharges both sureties. 172 THE LAW OF SUEETYSHIP. a co-surety in baiLkruptcy, 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 ^yas' released.*'^ The extension of time to one of several sureties, would 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 surety of the privilege of having immediate contribution at maturity, if he pays the debt^'* The release of one of several oo-promisois, 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 i»« Sacramento Co. vs. Bird, 31 Cal. 66. Sec. 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. Release of a co-surety by plea of coverture does not affect liability of other sureties. Warren vs. Louis- ville Tobacco Exch. 55 S. W. 912. loTDodd 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. Bogardia, 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 the principles involved are not parallel. See also Lower vs. Buchanan Bank, 78 Mo. 67; English 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. 108 l(je vs. Churchill, 14 0. S. 372; Gosserand vs. Lacour, 8 La. Ann. 75. Contra — ^Draper vs. Weld, 13 Gray 580; Sherman County vs. Nichols, 65 Neb. 250; 91 N. W. 198. SUEETTSHIP DEFENSES. 178 is considered as notice to the party released that his liability in eontribution 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 upon 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- tribtitory 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 bim 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. E. 540; Kea;rsley vs. 617. Where the complete discharge Cole, 16 M. & W. 128; Price vs. of the remaining surety is conceded Barker, 4 El. & BI. 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 Pae. 679; Stockton vs. Stockton, son, 44 Mo. 305; Massey vs. Browa, 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, 185111. 227; 56 N.E. 1099; State vs. Atherton, 40 Mo. 209; Price vs. Barker, 4 El. & Bl. 670; Walsh vs. Miller, 51 0. S. 462; 38 N. E. 381 ; Hallock vs. Yankey, lOa Wis. 41; 78 N. W. 156. 174 THE LAW OF SUEETYSHIP. by his contract or by Btatute,^"" 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 & Heading Ry. 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. R., 6 Eq. Cases 410, Oiffard, 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 suifered; by a bill which has been sometimes called a, bill qitai 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; Womack vs. Paxton, 84 Va. 9; 5 S. E. 550 ; Ardesco Oil Co. vs. No. Amer. Oil Co., 66 Pa. 375. Sharswood, J. : " It is well set- tled that as soon as a surety's obli> gation to pay becomes absolute he ia 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. Sutliflf, 36 Kan. 444; 13 Pac. 828; Eaton vs. Waite, 66 Me. 221; Gray va. Farmers Bank, 81 Md. 631; 32 Atl. 518; Inkster vs. First Bank, 30 Mich. 143 ; Smith va. 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 va. Hor- gan, 18 R. L 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 STJEBTTSHIP 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 ajcoount of the failure of the creditor to comply with the notice. ""^ pays. The creditor's chief purpose in requiring a surety is to avoid the necessity of resorting to legal remedies against the priincipal, to escape the vexation and expense of litigation, and cast the burden upon another. The surety's contract is, tliat 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 te performs his contract, the cred- itor has neither cause nor opportu- nity to institute legal proceedings." See Contra Cases cited in Post Sec. 116. 205 The Statute in Ohio is as follows : 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, and to make, by execution, the amount thereof, the creditor, or the assignee of such instrument, so fail- 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. C;lark vs. Osborn, 41 0. S. 28; Iliff vs. Weymouth, 40 0. S. 101; Ala- bama National Bank vs. Hunt, 12,) Ala. 512; 28 So. 488. But where the creditor is a married woman, a notice by a surety direct to and served upon her husband, demanding that he bring suit forthwith, is in- sufficient, although such notice be communicated and exhibited by the husband to his wife. Moorman vs. Voss, 83 N. E. 76; 77 Ohio 270. 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. Douglass, 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; Williams vs. Ogg & Keith Lumber Co., 42 Tex. Civ. App 558; 94 S. W. 420; Edmonsoi vs. Pott's Admr., 68 S. E. 254; 111 Va. 79; Benge's Admr. vs. Eversole 156 Ky. 131; 160 S. W. 911. It is held that the provisio,ns of the Statute apply, although the 1^&- THE LAW OF SUEETYSHIP. ' There are 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 proihisor 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, the 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, grant- ing jurisdiction in equity to a promisor to accelerate iJie dili- gence of the creditor, is not altogether consistent with the denial, by the same oourt^ 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 Fain 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, creditor does not reside in the same ing the creditor to proceed against jurisdiction as the principal. Meri- the principal This is the den) Silver. Plate Co. vs. Flory, 44 O. common course, where the surety S. 430; 7 N. E. 753. In this case seeks, by a bill against the cred- the creditor was domiciled in Con- iter and the principal, to compel the necticut and the surety and princi- latter to exonerate the surety from pal in Ohio. But if the principal losses which may otherwise be sus- has left the state the obligee is not tained by him by the delays and for- obli^ed to follow him and sue him in bearance of the creditor in enforc- ainother jurisdiction. Thompson vs. ing his debt." Thompson vs. Tay- Treller, 101 S. W. 174; 82 Ark. 247. lor, 72 N. Y. 32; Whitridge vs. In Robertson vs. Angle, 76 S. W. IJurkee, 2 Md. Ch. 442; Irick vs. 317, it was held that where the Black, 17 N. J. Eq. 189; Eeuach vs. maker of a note was insolvent when Keenan, 42 La. Ann. 419; 7 South, the sureties gave notice to the payee ."589. to sue, the sureties were not dis- Such remedy in equity is held to chargd by the payee's failure to sue be merged in the Statute providing the maker as requested. Tier a requirement on the part of the 2»8 In re Babcock, 3 Story 390, creditor to sue the principa.1 upon Story, J.: "There is no doubt, that notice. Barnes vs. Sammons, 128 a surety for a debt may in many Ind. 596; 27 N. E. 747. cases be entitled to relief by requir- SUEETTSHIP DEFENSES. 177 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 case of Pain vs. Packard*" decided in New York in 1816, is considered the parent case 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 transaction is a sale of a chose in action, with a guaranty by the vendor ; '''* 207 13 Johns. 174. The doctrine of Fain vs. Packard is adopted in the following cases: King vs. Baldwin, 17 Johns. 384; Manchester Co. vs. Sweeting, 10 Wend. 163 ; Remsen 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 sufficient, 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 of his action. A request to be effective under the doctrine of Fain 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 a 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 obligation and cannot, we think, by notice impose upon the . 178 THE LAW OF SUEETYSHIP. thus leaving the rule in force only as to cases in which the promisor contracts solely for the benefit and acconunodation 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 authority upon which it rests is limited to cases where cross-demands exist between the parties ; and if both demands are 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- erally 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 . creditor or holder the duty of active tied to the benefit of the rule of Pais diligence at the risk of discharging vs. Packard. the surety by omitting it." New- 2n Sefton vs. Hargett, 113 Ind. comb vs. Hale, 90 N. Y. 326. 592; 15 N. E. 513. The Statute in But see Colgrove vs. Tallman, 67 Indiana gives to the Surety sued N. Y. 95, where one not originally alone the benefit of set-off in the bound as surety, 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. SUEETTSHIP DEFENSES. 179 arising out of the same transaction in -which another is surety, or upon a separate cause of action, that the right of the prin- cipal to have counterclaim or set-off should inure to the prom- isor in suretyship when sued by the creditor. The creditor should not be permitted to invoke a multiplicily 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 vyith 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 elefet 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.^^^ 212 Gillespie vs. Torrance, 25 N. fendant was an accommodation in- Y. 306. In this ease there was a dorser. The Court said: "The breach of warranty, giving rise to a principal has a right of election claim for damages against the cred- whether the damages shall be claimed itor, and in favor of the principal, by way of recoupment in the suit upon a contract for which the de- on the note, or reserved for a cross- 180 THE I^W OF SUEETYSHIP. For special equitable reasons, such as the insolvency of the 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 make 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 oounterolaim, amd have it allowed, in the action, it must bar any future action by the principal for the bfeach of warranty; and as BO 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 tase, it woul3 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 claimi be reconciled?" Lasher vs. Williamson, 55 N. Y. 619; Newton vs. Lee, 139 N. Y. 332; Elliott vs. Brady, 192 N. Y. 221; 85 N. E. 69; 34 X. E. 905; Osborne vs. Bryce, 23 Fed. Eep. 171; Beard vs. Union Co., 71 Ala. 60; B. & 0. K. R. Co. vs. Bitner, 16 W. Va. 455; Thalheimer vs. Crow, 13 Col. 397; 22 Pac. 779. Contra — ^Scroggin vs. Holland, 16 Mo. 419; Aultman vs. Hefner, 67 Tex. 54; 2 S. W. 861; Bechervaise vs. Lewis, L. E., 7 C. P. 372; Mur- phy vs. Glass, L. E., 2 P. C. 408; Alcoy Ey. vs. Greenhill, 41 London Solicitors Jour. 330. 2isJarratt vs. Martin, 70 N. C. 459; Scholze vs. Steiner, 100 AIn. 148; 14 South. 552. Contra — Willoughby vs. Ball, IS Okl. 535; 90 Pac. 1017. Where the maker is insolvent and the surety is sued alone, the court may require the maker to be brougW; in as a party defendant for purpose of adjudicating a counterclaim be- tween the creditor and the maker. Hines vs. Newton, 30 Wis. 640. =" Wilkins vs. Bank, 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 TA. 108; 22 N. E. 813; Graham vs. Einj;o, 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 vs. Weirich, 26 0. S. 332. SUEETTSHIP DEFENSES. 181 Where all tlie 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 country."" §118. Defenses based npon the light 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 applied in reduction of the particular debt for which he is liable."" Unless restricted by a contract to the contrary, the creditor 2J0Mahurin vs. Peairson & Bel- lows, 8 N. H. 539, Parker, J.: "There are several eonsideratioms 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 mi^'ht have been re- garded by the parties as in effect a payment 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 creditor have security, the surety, on payment by him, is entitled to be substituted, amd 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 thai 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 aetloii 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; Eonehel vs. Lofquist, 46 111. App. 442; Reeves vs. Chambers, 67 la. 81; 24 N. W. 602; Spencer vs. Almoney, 56 Md. 551; Concord vs. Pillsbury, 33 N. H. 310; Andrews vs. Verrell, 46 N. H. 17; St. Paul vs. Leek, 57 Minn. 87; 58 N. W. 826; Wagner vs. Stocking, 22 0. S. 297; HoUister vs. Davis, 54 Pa. 508; Wartman vs. Yost, 22 Grat. 595; McHardy vs. Wadsworth, 8 Mich. 349; Pierce vs. Bent, 69 Me. 381; Pickett vs. Andrews, 69 S. E. 478- 136 Ga. 209. 2" Fall River National Bank vs. Slade, 153 Mass. 415; 26 N. E. 843; Tolerton & Stetson Co. vs. Roberts, 115 Iowa 474; 88 N. W. 896; Ad- vance Thresher Co. vs. Hogan, 74 O S. 307; 78 N. E. 436; Livermore Falls Trust & Banking Co. vs. Rich- mond Mfg. Co., 79 A. 844; 108 Me. 206; Kissire vs. Plunkett-Jarrell Grocer Co., 145 S. W. 9»7; 103 Ark. 473. 182 THE XAW 03? SUEETYSHIP. may apply the proceeds of collateral to ihe 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. E. 366; 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 K. W. 357. in it, and is bound to administer the 2i»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 has 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 itor to other purposes than those under which the creditor holds the marked out by the terms of the de- 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 cipal 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, 9 Gill (Md.) and indeed of any knowledge on the 314 ; Pearl vs. Deacon, 24 Beav. 186. part of the surety of the deposit of 220 Field vs. Holland, 6 Cranch 8 ; the securities In such Nat'l Bank vs. Bigler, 83 K. Y. 64. SUEETTSHIP DEFENSES. 183 TTill 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, hasi 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."' "1 Hayes vs. Ward, 4 Johns. Ch. 123. In this case, the creditor, as additional security, took from the pi;incipal 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 indemnity, or by subrogation to foreclose 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; Penn vs. Ingles, 82 Va. 65; Aultman vs. Smith, 52 Mo. App. 351. 223 Johnson vs. Harris, 69 Ind. 305; Crawford vs. Turnbaugh, Trus- tee, 86 0. S. 43; 98 N. E. 858. 184 THE LAW OF STJEETYSHIP. §119. Bevocation — Death of the promisor. If the contract is executory, such as a commercial guaranty of future optional advances, the obligation is not binding upon the promisor until acted upon by the creditor, and may be re- voked by notice at any time before it becomes binding ; or if the advances are divisible, each advance is a separate consideration, and the promisor may at any time, terminate the engagement as to future or additional advances. In such cases, the death of the guarantor, operates as constructive notice of a revocation from the time that knowledge of the death is brought home to the creditor.""* The contract of the surety is not in general revokable by notice, and such promisor cannot withdraw from his obligation, without the consent of the creditor, unless stipulated in his con- tract or provided by law, as in cases of bonds of public officers in some jurisdictions. The same rule applies to an executed contract of guaranty. The death of the surety or guarantor, where the contract is executed, and the consideration passed, does not revoke the obligation, and the estate of the promisor will be liable' for de- fault committed subsequent to the death. Thus a bond was required of an applicant for election as a member of an Underwriting Association, and the bond being furnished, he was elected to such membership. The considera- tion was wholly executed, and consisted in the giving to the principal the status and privileges of such membership, and it was held that the death of the surety on the bond, although known to the Association, did not revoke the obligation, and/ that the estate was liable for defaults subsequent to the death.""" The same situation arises where a surety engages that an- >, 224 Ante Sec. 71. & Co. vs. Lang's Admr., 106 Ky. ■ See Jordan vs. Dobbins; 122 Mass. 652; 51 S. W. 154. 168, where it is held that the death 225 Lloyd's vs. Harper, 16 Ch. Div. cf t^e guarantor operates as a revo- 290. cation, even though the creditor See also Kernochan vs. Murray, makes the subsequent advances with- 111 N. Y. 306, 18 N. E. 868. out notice of the death; Aitken, Son SUEETTSHIP DEFENSES. 185 bther will perform the covenants of a lease/^' or in the case of a contract for employment for a definite time, either in a private capacity or as a public officer,''^' A bond for costs will survive the death of a surety.'"'* Where the undertaking was to answer for the default of another, so long as he continued in the service as a collector, the suretyship was held to survive the death of the promisor, inas- much as by the terms of the contract it was not terminable until the service was ended. ""' At common law where a surety became jointly liable with the - principal, the death of the surety ended the obligation and the estate was released both as to past and future defaults. This was merely an application of the rule which prevailed at com- mon law as to all joint obligations. In the early cases it was held that the survivor must bear the whole burden of such con- tracts, even though the decedent participated in the considera- tion."^" Courts of Equity, however, invented a fiction whereby joint obligations, in which both parties were participants in the con- sideration, were taken out of the rule by holding that such joint 220 Coe vs. Vogdes, 71 Pa. 383. notice of withdrawal, at least from ^" Shackamaxon Bank vs. Yard, the time when the knowledge of the 143 Pa. 129; 22 Atl. 908; Broome same has been brought home to the vs. United States, 15 How. 143; obligee. A Court cannot release a Mowbray vs. State, 81 Ind. 324; surety upon a cost bond without the Snyder vs. State, 5 Wyo. 318; 40 consent of the party for whose ben- Pac. 441 ; Hightower vs. Moore, 46 efit the security has been given. Ala. 387; Kapp vs. Phoenix Co., 113 This feature of the obligatiom of a 111. 390; Eoyal Co. vs. Davies, 40 cost bond places it in the category la. 469; Holthausen vs. Kells, 45 N. of irrevocable guaranties, the obli- Y. S. 471 ; Hecht vs. Weaver, 34 gations of which continue according Fed. 111. to their terms, without regard to the 22SFewla3s vs. Keeshan, 88 Fed. death of the guarantor." Eep. 573, Taft, J.: "The rule as to See also McOosky vs. Barr, 79 the obligation of a guarantor in re- Fed. Eep. 408. spect to trainsactions occurring after 229 Calvert vs. Gordon, 3 Man. & his death is that the obligation is Ry. 124. not affected by his death if the con- as* Towers vs. Moor, 2 Vem. 98 ; tract was one from which he might Lane vs. Boty, 4 Barb. 530; Demott not withdraw upon notice, but that, vs. Field, 7 Cow. 58; Foster vs. if he could have done so, then his Hooper, 2 Mass. 572. death will be given the effect of a, 186 THE LAW OF SUEETYSHIP. obligations must have been intended as joint and several, and written as joint contracts by mistake.^'^ But Courts of Equity declined to extend the fiction to include parties not joining in the consideration, and the estate of a surety was held entitled to go acquit. "^^ 2S1 Simpson vs. Vaughan, 2 Atk. 31; Bishop vs. Church, 2 Vessey 100 J Weaver vs. Shyrock, 6 Serg. & R. 262, Tilghman, C. J. : " It is a fair presumption, in the absence of all evidence to the contrary, that every man understands what he is doing, and that these obligors under- stood the long and well established difference between a joint and a joint and several obligation. But this presumption may be rebutted by circumstances; and one circum- stance on which Courts of Equity have laid great stress, is, that the money for which the bond was given, was borrowed by, or came to the use of, both the obligors; in such case, the very act of borrowing, does, in itself, amount to a, contract, ante- cedently to their entering into a bond, that each and both should be bound to pay. " When, therefore, the bond is aft- erwards so drawn as to- constitute only a joint obligation, there is a reasonable presumption, that either through fra,ud, ignorance or inad- vertence the meaning of the parties has not been carried into effect." If the suretyship contract was for the benefit of the surety, his estate will not be discharged from liability, such as the discharge of a prior ob- ligation upon which the surety was liable. Boyd vs. Bell, 69 Tex. 735; 7 South. 657; Richardsbn vs. Dra- per, 87 N. Y. 337. 232 Jones vs. Beach, 2 DeGex. M. A Y. 886; Getty vs. Binsse, 49 N. Y. 385; Wood vs. Fisk, 63 N. Y. 245; Risley vs. Browii, 67 N. Y. 160. Such rule will be applied, al- though the obligation is joint and several, if the creditor elects to re- cover a joint judgment, and thereby the right against the surety in sev- eralty is merged in the judgment. United States vs. Price, 9 How. 84, Qrier, J.: "When an obligee takes a joint and several bond, he has nothing to ask of equity; his remedy is wholly at law. If he elects to take a joint judgment, he voluntarily repudiates the several contract, and is certainly in no bet- ter situation than if he had origi- nally taken a joint security only; equity gives relief, not on the bond, for^that is complete at law, but on the. moral obligation, antecedent to the bond, when the creditor could have had no remedy at law. "An obligee who has a joint and several bond, and elects to treat it as joint, may sometimes act un- wisely in so doing, but his want of prudence is no sufficient plea for the interposition of a chancellor. Nor can the conscience of a mere security be affected, who, having tendered to the obligee his choice of holding him jointly or severally liable, has been released at law by the exercise of such election." It is held that a judgment lien upon the property of a surety joint- ly liable with the principal, will sur- vive the death of the surety. Bas- kin vs. Huntington, 130 N. Y. 313; 29 N. E. 310- SUEETYSHIP DEFENSES. 187 Nearly all the States in this coimtry now express their dis- approval of the reasoning -which exonerates the estate of a surely, by the enactment of statutes holding the estate of the surely to the same liability as if the surety had survived.''^* 238 Burgoyne vs. Ohio, 5 O. S. 586, Ranney, J.: "This Statute ef- fected an entire abrogation of the common law principle to which allu- sion has been made, and left the estate of the joint debtor liable to every legal remedy, as fully as though the contract had been joint and several." See also Mays vs. Cockrum, 57 Tex. 352; Donnerberg vs. Oppefi.- heimer, 15 Wash. 290; 46 Pac. 5J54; Powell vs. Kettelle,6 111.491. The Common Law rule as to the dis- charge of the estate of a deceased , joint obligor, has never been in fowie in Indiana. Hudelson vs. Arm- strong, 70 Ind. 99. CHAPTER V. BONDS TO SECURE PRIVATE OBLIGATIONS. Sec. 120. Private Obligations Distinguished from Official Duty in Public Office. Sec. 121. A Bond is a, Specialty — Form and Execution. Sec. 122. Tile Signing and Sealing of a Bond. Sec. 123. Delivery and Acceptance are Necessary to the Validity of a Bond. Sec. 121. Incomplete Bonds — Eight of the Obligee to Fill Blanks. Sec. 125. The Incorporation of Other Instniments Into the Bond by Ref- erence. Sec. 126. Consideration. Sec. 127. Bonds Obtained by Fraud or Misrepresentation. Sec. 128. Pa^ol evidence in Aid of Construction. Sec. 129. Qommencement and Duration of Liability Upon a Bond. Sec. 130. Bonds of General Indemnity. Sec. 131, Bonds to Secure Building Contracts, with Covenants for the Pay- ment of Labor and Material Claims. See. 132. Alteration of the Principal Contract as a Defense to Sureties Upon the Bond. Sec. 133. Alterations in Bond as a Defense to the Sureties. Sec. 134. Surety Upon Bond Estopped from Denying the Recitals of the Bond. Sec. 13.5. Measure of Damages Upon Breach of the Conditions of a Bond. Sec. 136. Same Sulbject — ^Where the Penalty or Forfeiture is In-posed by Statute. Sec. 137. Interest as an Element in the Measure of Damages. Sec. 138. Bonds to Induce Violation of Law are Void. Sec. 139. Bonds to Prevent Performance of Public Duty or to Induce Acts In Violation of Public Duty are Void. Sec. 140. Discharge of Surety Upon a Bond by Payment or Acts Equiv- alent to "ayment Sec. 141. Statutes of Limitations as a Defense to Sureties Upon a Bond. Sec. 142. As to Who are Proper Parties in an Action Upon a Bond. Sec. 143. .loinder of Parties Plaintiff. Sec. 144. Joinder of Parties Defendant. 188 PBIVATE OBLIGATIONS. 189 §120. Private obligations distinguished from official dnty in public office. Private obligations are coijjjfactual, and the duties imposed arise from the agreement of the parties. Official duty in Public Office is imposed by law, the terms of which are either expressed directly in a statute defining the duty, or implied from the statute creating the office. Private obligations are subject to the will of the parties, they are conventional, and in varying form as the parties may finally stipulate between themselves, and may thereafter be waived in whole or in part. , Official 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 Official duty. Bonds to secure the performance of private contracts, and bonds of Public Officers, by reason of these inherent differences in the character of the obligation to be secured, are subject to rules of oonstruction 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- ance of building contracts, or to secure against loss from failure of title, or to indemnify against the consequences of lega;l ac- tion, bonds against loss by reason of the insolvency or other breach in the contract of another, constitute the special field of this chapter. 190 THE LAW OP SUEETTSHIP. §121. 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 undertaking. 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, that 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.^ 1 Inhabitants of Treseott vs. Moan, If the obligee is described with 50 Me. 347. sufficient certainty to Identify him, 2 Wood vs. Chetwood, 44 N. J. although not named, it will be suffi- Eq. 64. cient. Thus where the obligation » 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 Ter. 207 ; Preston vs. Hull, 23 Gratt. was described with sufScient 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. 191 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.* ^122. 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.' But. where the principal in a bond would be liable without reference to the bond for the acts constituting the breach, and by the terms of such bond the parties bind themselves severally as well as jointly to perform its conditions, the failure of the principal to sign the bond will not release the surety from liability."'' 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 seeiires, 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- «Post Sec. 124. Bjoin vs. Anglim, 97 Minn. 526; 'Ohuroh vs. Noble, 24 111. 291; 107 N. W. 558; Selby vs. City of Copeland vs. Cunningham, 63 Ala. New Orleans, 119 La. 900; 44 So. 394; Evarts vs. Steger, 6 Ore. 55. 722; Bryant vs. Kinyon, 127 Mich. 8 Partridge vs. Jones, 38 0. S. 152; 86 N. W. 531; North St. Louis 375; Building Association vs. Cum- B. & L. Assoc, vs. Obert, 169 Mo. mings, 45 0. S. 664; 16 N. E. 841; 507; 69 S. W. 1044; Novak vs. Pit- Howell vs. Parsons, 89 N. C. 230; lick, 120 la. 286; 94 N. W. 916; Danker vs. Atwood, 119 Mass. 146; La Belle Iron Works vs. Quarter Moore vs. McKinley, 60 la. 367; Savings Bank (W. Va.), 82 S. E. 14 N. W. 768. 614. 9 Goodvear Dental Vulcanite Co. "n U. S. F. & G. Co. vs. Hs,ggart, vs. Bacon, 151 Mass. 460; 24 N. E. 163 Fed. 801; 91 C. C. A. 289; Citv 404; School District vs. Lapping, of Deering vs. Moore, 86 Me. 18l'; 100 Minn. 139; 110 N. W. 849; 29 Atl. 998; Deer Lodge County vs. 192 THE LAW OP SUEETYSHTP. 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." 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 within ' 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 followed 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." U. S. F. & G. Co., 42 Mont. 315; 112 authenticity. lu the earliest recards Pac. 1060; Empire State Surety vs. of history are to be found mamy Carroll County, 194 Fed. 593; 144 instances of the use of the seal as C. C. A. 435; Star Grocer Co. vs. a symbol of attestation. Bradford, 74 S. B. 509; 70 W. Va. "And I bought the field of Hana- 496; Clark vs. Bank of .Hennessey, meel and weighed him the money, 14 Okl. 572; 79 Pac. 217. even seventeen sihekels of silver, and 10 Hill vs. Scales, 15 Tenn. 410; I subscribed the evidence, and sealed Manhattan Life Ins. Co. vs. Alexan- it, and took witnesses, and weighed der, 89 Hun 449; 35 N. Y. S. 325. him the money in the balances, so I If the obligor delegates to another took the evidence of the purchase, authority to execute a bond, he will both that which was sealed accord- be bound, but such authority must ing to the law and custom, and thaA be in writing. Basham vs. Common- which was open." — Jeremiah xxxii, wealth, 76 Ky. 36. 9-11. 11 JeGFery vs. Underwood, 1 Ark. The charter of Westminster, 108; Curd vs. Forts, 9 Ky. 119. granted by Edward the Confessor, 12 Ante Sec. 30. does not bear the signature of the Where the Statute of Frauds re- monarch, but only his seal. quires the writing to be "sub- The use of individual seals bear- scribed" by the party to be bound, ing the family coat of arms, or as in New York, a printed signature other distinctive character, was a is not deemed a compliaince with the safeguard against fraud and for- Statute. Vielie vs. Osgood, 8 Barij. gery, and furnished evidence of gjen- 130; Davis vs. Shields, 26 Wend, uineness which was of practical im- 341; Cunningham vs. Hawkins, 128 portance in determining the ohar- N. W. 223; 163 Mich. 317. acter of written instruments, in the 13 Gardner vs. Cooper, 9 Kans. days when the ordin^u-y machinery App. 587 ; 58 Pac. 230 ; 60 Pac. 540. of the law offereid little if any pro- 1* Seals have been employed from tection. very ancient times, as aji evidence oi PRIVATE OBLIGATIONS. 193 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 hond under seal.^" In some States the Legislature has made the seal only pre- sumptive 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 effect, 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. S.," 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 a seal. The Legislature in a number of the States has recognized the fic- tion which is now represented by private seals, and abolished them al- together. This has been done in Ohio, Indiana, Iowa, Kansas, Ne- braska, 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 Kentucky, California, and Ore- gon. 10 Building Association vs. Cum.- mi^ngs, 45 0. S. 664; 16 N. E. 841; New Orleans St. L. & C. Ky. Co. vs. Burke, 53 Miss. 200; Northumber- land vs Cobleigh, 59 N. H. 250; Warder, B. & G. Co. vs. Stewart, 36 Atl. 88; 2 Marv. (Del.) 275. But see Hess's Estate, 150 Pa. 346; 24 Atl. 676. 16 Cosgrove vs. Cummings, 195 Pa. 497 ; 46 Atl. 69 ; Weber vs. Roland, 39 Pa. Sup. Ct. 611. Storm vs. United States, 94 U. S. 76, Cliff m-d, 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 unrmpeached." Van Valkenberg vs. Smith, 60 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 enacted in New York, New Jersey, Michi- gan, Wisconsin, Oregon, and Ne- braska. 194 THE LAW OF SUEETYSHIP. §123. 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 on© 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. "Weed Sewing Machine Co. vs. wick va. Van Voorhis, 91 N. Y. 353; Jeudevine, 39 Mich. 590. State vs. Ingram, 27 N. C. 441; Where the obligee receives the Kranichfelt vs. Slattery, 33 N. Y. bond upon condition that it is not 'S. 27; Valentine vs. Wheeler, 116 to take effect until others sign as Mass. 478. co-sureties. Such conditions may be A delivery to a thiiid person au- shown, and the delivery is not com- thorized by an obligee to receive the plete. Stuart vs. Livesay, 4 W. Va. bond, will constitute a legal delivery. 45; Spencer vs. McLean, 20 Ind. Where a bond is duly executed, App. 626 ; 50 N. E. 769 ; Dunlap vs. but not delivered until after the Willett, 153 N. C. 317; 69 S. E. 222; death of the obligor, it will not be Hendry vs. Cartwright, 89 Pac. 309; binding. Fay vs. Eiichardsoii, 7 Gay vs. Murphy,. 134 Mo. 98; 34 S. Pick. 91; Fiala vs. Ainsworth, 63 W. 1091; Hagler vs. State, 31 Neb. Neb. 1; 88 N. W. 135. 144; 47 N. W. 692; Baker County =0 Engler va. People's Fire Ins. vs. Huntington, 46 Ore. 272; 79 Pac. Co., 46 Md. 322; Union Bank of 187. Maryland vs. Eidgeley, 1 Har. & G. See also Whitsell vs. Mebane, 64 (Md.) 324; Mailers vs. Crane Co., N. C. 345. 92 111. App. 514. 19 Wood vs. Chetwood, 44 N. J. Where the possession is shown to Eq. 64; State vs. Suwamee Co. Com- be merely for the purpose of inspec- missioners, 21 Fla. 1 ; Grim vs. tion, the presumption of acceptance School Directors, 51 Pa. 219; Blaink- is rebutted. Comer vs. Baldwin, 16 man vs. Vallejo, 15 Cal. 638; Host- Minn. 172. PEIVATE OBLIGATIONS. ■]^95 • Where a bond recites that it shall run for 12 months from its date, the surety will be liable for defaults occnirring between the date and the delivery. ^^ <§'124. Incomplete bonds — Bight 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 with 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 sudi 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.^* *i^tna Life Ins. Co. vs. Ameri- Peace to draft the bond, and the can Surety Co., 34 Fed. Rep. 291; obligors stipulated the conditions Supreme Council Catholic Knights agreed upon, and signed the bond vs. Fidelity & Casualty Co., 63 Fed. in blank, intrusting to the Justice Rep. 48; Post Sec. 130. to fill it in as stipulated. The See also Oregon Ry. & Nav. Co. bond was not filled in as agreed, vs. Swinburne, 22 Ore. 574; 30 Pac. and being set up as a counter- 3Z2. 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 196 THE LAW OP SUBETYSHIP. §126. The incorporation of other instrnments 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 iu 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 uncer- tainty, »uoh 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 allegationa 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, instefid of inserting payments in this bond, as agreed, had inserted therein a conveyance of real estate, or a bond for absolute payment of the principal 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 plains 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 OBUGATIONS. 197 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 wiU not render the surety liable for default in furnishing the mate- rial." In general the bond will be construed in accordance with the terms of the agreement as ascertained by reading together the bond and the contract to which reference is made.^" 230 Morgan vs. Salmon, 135 Pac. 553. 23 ^tna Life Ins. Co. vs. AmeA- PRIVATE OBLIGATIONS. 205 Where the bond recites that the principal will perform his duties as agent, and pay over all money which comes into his hands, the sureties will be liable for his default in paying over money which he had previously collected, and which he had on hand at the time the bond went into effect"* Whesre an agent, prior to the giving of a bond, misappro- priates funds of his principal, and during the period covered by the bond, collects money due his principal and reports it as coming from the debtors whose collections he had previously converted, and the principal so credits it, without knowledge of the fraud, it will be deemed a defalcation under the bond.*" If the appointment to the office or agency is for a limited tiine, the liability upon the bond will be limited to the same pe- riod, although the language of the bond contains no words of lim- itation. Thus where a Treasurer was appointed for one year, and gave bond for the faithful discharge of the duties of his office, with- out specifying any time the bond was to run, it was held that no liabilily attached under the bond for defaults committed under subsequent re-appointments to the office."* Where it does not appear, either from the by-laws of the Cor- poration or from the contract of appointment, that the office or Agency is annual, and the bond in terms does not fix a limit, can Surety Co., 34 Fed. Rep. 291; N. W. 532; Rankin vs. Tygard, 198 Supreme Council Catholic Kniglits Fed. 795; 119 C. C. A. 591; Ulster vs. Fidelity & Casualty Co., 63 Fed. County Sav. Bank vs. Ostrander, Rep. 48. 163 N. Y. 430; 57 N. E. 627; Ida Contra — First National Bank vs. County Sav. Bank vs. Seidenstieker, Briggs, 69 Vt. 12; 37 Atl.. 231; 128 Iowa 54; 102 N. W. 821 ; Blades Bullion Lumber Co. vs. Barnard, vs. Dewey, 136 N. C. 176; 48 S. E. 131 Wis. 284; 111 N. W. 483. 627. B* Mutual Life Ins. Co. vs. Wil- Contra — A bond conditioned for cox, 8 Biss. 197. the proper performance by a cashier 5s American Bonding & Trust Co. of his duties "for and during all the vs. Milwaukee Harvester Co., 91 Md. time he shall hold the said office," 733: 48 Atl. 72. binds the sureties for all such time. Contra — State vs. Atherton, 40 irrespective of the fact that he is Mo. 201. reappointed at the beginning of each "•Welch vs. Seymour, 28 Conn. vear. Nestervell vs. Mohrensteoher 3S7; Mutual Loan & Bldg. Assoc. 76 Fed. 118: 22 C. C. A. 93. vs. Miles, 16 Fla. 204; Savings Bank See also Mutual Bldg. & Loan As- of Hannibal vs. Hunt, 72 Mo. 597; soc. vs. McMullen, 1 Penny (Pa.) Citizens' Loan Assoc, vs. Nugent, 40 431. In this ease the bond recited N. J. L. 215; First National Bank that it was given to secure the faith- \s. Samuelson, 118 N, W, 81; 62 ful performance by the Treasurer of 206 THE LAW OF SURETYSHIP. the sureties will be liable so long as the employment or office continues.^' If the bond covers the duties of the office or employment for. the time for which the principal is then elected, and "So long as he shall continue in office," it will cover all future re-elee- tions,^^ but the tenure must be continuous. A vacancy in the employment, followed by a re-election will release the sureties from liability for default under the last election.'** §130. Bonds of general indemnity. A bond to secure the faithful performance of duty in a posi- tion of trust, operates as a security against all loss resulting from the misconduct or want of care of the principal. "Faithful" performance of duty includes not only honesty, but also the skill and diligence implied as a condition of all con- tracts of employment. Although the agent or employee acts with the utmost fidelity, in the sense that he does not convert or misappropriate the funds of the obligee, he is nevertheless unfaithful within the meaning of bonds, of general indemnity, if by his indifference to his trust, or by his negligence, a loss occurs.^" If the trust funds are taken from him by violence, not in- duced by his want of care, or by inevitable accident, the sureties will not be liable." his duties during his "continuance defalcations occurring after the end in ofBoe," but it was held to be lim- of indefinite term. ited to one year, since the charter 58 People's Bldg. & Loan Assoc. and By-laws of the Association re- vs. Wroth, 43 N. J. L. 70; Ulster quired the Treasurer to be elected County Savings Bank vs. Young, 161 annually. O'Brien vs. Murphy, 175 N. Y. 23 ; 55 N. E. 483. Mass. 253; 56 N. B. 283. ss Middlesex Mfg. Co. vs. Law- See also State vs. Mann, 34 Vt. rence, 83 Mass. 339; Coombs vs. 371. Harford, 99 Me. 426; 59 Atl. 529; 57 Union Bank vs. Kidgely, 1 Har. Lexington & West Cambridge K. R. & Gill (Md.) 324; Dedham Bank vs. vs. Elwell, 90 Mass. 371. Chickering, 3 Pick. 335 ; Merchants 80 Union Bank vs. Forrest, 3 Bank vs. Honey, 58 Kan. 603; 50 Cranch (C. C.) 218; Barringfcon vs. Pac. 871. Bank of Washington, 14 Serg. & E. But see Waipello State Savings Banfk 405 ; Frink vs. Southern Express vs. Colton, 110 N. W. 450. A cash- Co., 82 Ga. 33; Engler vs. People's ier was elected to hold oflBce "dur- Fire Insurance Co., 46 Md. 322; ing pleasure of the board," and gave Citizens' Bank vs. Wiegand, 12 bond for faithful performance of his Phila. Rep. 496. duties. Subsequently and while he 'iHuntsville Bank vs. Hill, 1 was acting as cashier, the board Stew. (Ala.) 201; Chicago, B. &, elected him cashier for the next year. Q. Ey. vs. Bartlett, 20 111. App. 96 ; It was held that the indefinite term B. & 0. Ry. vs. Jackson, 3 Atl. Rep. was terminated by the definite term (Pa.) 100. and the sureties were not liable for PRIVATE OBLIGATIONS. 207 Neither will the sureties be liable for defaults eommitted by subordinates of the principal, where such subordinates are ap- pointed by the obligee.^^ General indemnity for faithful performance of duty includes more than the prescribed duties of the employment. If the agent or employee acts outside the scope of his em- ployment, but under color of his of6.ee or position, and loss re- sults to the obligee, the sureties will be liable."' Where the law prohibits an officer of the bank from borowing from his own bank, it is a violation of his official duty to receive such loan, and a failure to repay the loan so made, creates a lia- bility against the sureties on his bond."* .§131. Bonds to secure building contracts, with covenants for the payment of labor and material claims. In general a bond to secure the performance of a building contract, with a covenant to pay all labor and material claims, will bind the surety to pay such claims, and recovery may be had at the suit of the claimants themselves."" The obligee in a building contract has a right not merely to require his building to be completed in a manner and at the time 62 Chicago & A. E. E. Co. vs. Hig- gins, 58 111. 128. In La Rose vs. Logansport Nat. Bank, 102 Ind. 332; 1 N. E. 805, filie funds were in charge of the cashier, but other officers of the bank had the right of access to the funds, and it was held that the sureties of the cas.hier were not liable for the mis- conduct of the other officers. «3 German Bank vs. Auth, 87 Pa. 419; Rochester City Bank vs. El- wooi, 21 N. Y. 88; WaWen NaA. Bank vs. Birch, 130 N. Y. 221; 29 K E. 137; Pendleton vs. Bank of Kentucky, 1 T. B. Mon. 171; Hum- boldt Savings & Loan Society vs. Wennerhold, 81 Cal. 528; 22 Pac. 920. But see Sperry vs. Dransfield, 2 New Zealand (S. C.) 319, where it is held that a suretv upon a fidelity bond given by an officer of a society is not liable for the conversion of funds which, under the rules of the society, should not have been paid to the officer. eiMoShane vs. Howard Bajik, 73 Md. 135; 20 Atl." 776. «5 See Post Sec. 142. Senp vB. McCann. 47 Minn. 364; 50 N. W. 246; Sa-lisburv vs. Kei- gher, 47 Minn. 367: 50 N. W. 245; Lyman vs. City of Lincoln, 38 Neb. 794; 57 N. W. 531; Doll vs. Grume, 41 Neb. 655; 49 N. W. 806; King vs. Downey, 24 Ind. App. ^62; 66 N. E. 680; American Surety Co. vs. Eiaeder, Assignee, 15 0. C. O. 47; Henry vs. Ankrim, 39 Law BuL (0.)''78; United States vs. Burg- dorf, 13 App. D. C. 506; St. Louis vs. Vou Puhl, 133 Mo. 561 ; 34 S. W. 843 ; Jordan vs. Kavanaugh, 63 Iowa. 152; 18 N. W. 851; Baker vis. Bryan, 64 Iowa 561 ; 21 N. W. 83. Contra — Cleveland Metal Roofing 'Co. vs. GasT-ard, 89 0. S. 185; Buf- falo Cement Co. vs. McNaug'hton, 90 Hun 74; 35 N. Y. S. 453 (affirmed, 156 N. Y. 702; 51 N. E. 1094). Holding that the labor or material- men cannot recover on the bond un- less it is shown that the labor and materials were furnished with knowledge of the provision of Vbe bond, and in reliance upon it. But see Wilson vs. Whitmore 92 Fnn 466: 36 N. Y. S. 5.'50. Affirmed 157 N. Y. 693; 51 N. E. 1094. Parker vs Jeffery, 26 Ore. 186- 37 Pac. 712. Holdine that the rule giving to third parties, the benefit of a contract to which they are not parties, is limited to those contracts which have for their primary obiecfc the benefit of a third person 20B THE lAW OF StTEETYSHlP. agreed upon, but also that it shall be delivered to him free from the liens of those who furnish labor and material in its con- struction. See also Simson vs. Brown, 68 N. Y. 355; Durnherr vs. Rau, 135 N. Y. 219; 32 N. E. 49; Electric Appli- ance Co. vs. U. S. Fidelity & Guar- anty Co., 110 Wis. 434; 85 N. W. i648. In City of Philadelphia vs. Mad- den, 23 Pa. Co. Ct. Rep. 39, it was held that a, Municipality has no right to require a contractor to fur- nish a bond, conditional upon the payment of labor and materials by the Contractor, and that such bond cannot be enforced against the surety. See also Kansas City Sewer Pipe Co. vs. Thompson, 120 Mo. 218; 25 S. W. 522. The holding in this case is based upon the absence of specific authority in the city charter to make a contract for the benefit of a third party. "As the city was not liable for the material and no lien could be asserted against her by plaintiff, it is very clear that it was not essential to the exercise of its charter right to construct sewers, that it should have the implied pow- er to contract for plaintiff's bene- fit." See also City of Kansas vs. O'Con- nell, 99 Mo. 357; 12 S. W. 791; Breen vs. Kelly, 45 Minn. 352; 47 N. W. 1067; Park Bros. & Co. vs. Sykes, 67 Minn. 153; 69 N. W. 712; Becker vs. Keokuk Water Works, 79 Iowa 419; 44 N. W. 694. As to the authority of a munici- pality to require a contractor to give a. bond conditioned upon the pay- ment of labor and materiia.1 claims. See remarks of Cooley, C. J-, in Knapp vs. Swaney, 56 Mich. 345; 23 N. W. 162. " It would be very strange if it (a municipal body) were found lack- ing in authority to stipulate, in a, contract for the building, that the contractors when calling for pay- ment, shall show that they are per- forming their obligations to those who supply the labor and materials, and that the county is not obtaining the building at the expense of a few of its people. We cannot think such is the case." By act of Congress, approved Au- gust 13th, 1894 (28 Stat. 278, o. 280), it is provided, "that hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work or for repairs upon any public build- ing or public work, shall be required before commencing such work to ex- ecute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prose- cution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the de- partment under the direction of which said work is being, or has been prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a cer- tified copy of said contract and bond, upon which said person or persons supplying such labor and materials PBIVATE OBLIGATIONS. 209 The bond given to secure the owner in these rights may as- sume the form of an undertaking to complete the building if the contractor does not, and to pay the labor and material claims if shall have a right of action and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties and to pros- ecute the same to final judgment and execution; provided, that such action and its prosecution shall in- volve the United States in no ex- pense." It is held in construction of this Statute that a bond given under its provisions is intended to perform a double function. First to secure the government; and second to protect third persons from whom the con- tractor may obtain labor and ma- terials in the prosecution of the work, and that these covenants are so far separate and distinct, that al- though the surety may be discharged as to one obligation, it will continue to subsist as a binding obligation as to the other beneficiary. United States vs. National Surety Co., 34 C. C. A. 526; 92 Fed. Eep. 549, Thayer, J.: "It is a familiar rule of law that the contract of a surety must be strictly construed, and that it cannot be enlarged by construction, and that when a bond, with sureties, has been given to se- cure the performance of a contract, and the principal in the bond and the person for whose benefit it was given make a material change in the contract without the consent of the surety, the latter is thereby dis- charged. For present purposes, it may be conceded that the finding of the lower court in the case at bar discloses such a modification of the original contract between Pros- per and the United States as would fall within the rule last stated, and release the defendant company from its liability, if the United States was suing for its own benefit for a breach of some provision of the con- tract, the due performance of whiclf the bond was intended to secure: . . . The condition for the ben"- efit of persons who might fumislf materials or labor is carefully pre- scribed. Obviously, therefore, Con- gress intended to afford full protec- tion to all persons who supplied ma- terials or labor in the construction of public buildings or other public works, inasmuch as such persons could claim no lien thereon, what- ever the local law might be, for the labor and materials so supplied. There was no occasion for legislation on the subject to which the act re- lates, except for the protection of those who might furnish materials or labor to persons having contracts with the government. The bond which is provided for by the act was intended to perform a, double func- tion, — in the first place, to secure to the government, as before, the faithful performance of all obliga- tions which a contractor might as- sume towards it; and, in the second place, to protect third persons from whom the contractor obtained mate- rials or labor. Viewed in its latter aspect, the bond, by virtue of the op- eration of the statute, contains an agreement between the obligors therein and such third parties that they shall be paid for whatever labor or materials they may supply to enable the principal in the bond to execute his contract with the United States. The two agreements which the bond contains, the one for 210 THE LAW OP SUEETYSHBP. the contractor defaults m that respect. Or it may take the form of an obligation to save the owner harmless from all loss result- ing from a breach by the contractor of any of the covenants of the building contract. In the one case, it is an obligation to pay such a sum of money as is necessary to carry out in full all the covenants of the building contract, and in the other, it is an obligation to pay such damages as are ascertained to result from the default of the contractor, without regard to the specific performance of his contract.*^* The undertaJring to pay labor and material claims is enforce- able, whether mechanic's liens representing such claims are per- fected or not, whereas, an obligation to save harmless from such claims only becomes a liability when these claims result in a lien upon the property. If the owner pays labor and material claims to prevent liens the benefit of the government, and the one for the benefit of third per- sons, are as distinct as if they were contained in separate instruments, the government's name being used as obligee in- the latter agreement merely as a matter of convenience. In view of these considerations, we are of the opinion that the sureties in a bond, executed under the act now in question, cannot claim ex- emption, from liability to persons who have supplied labor or material to their principal to enable him to execute his contract with the United States." Dewey vs. State ex rel. McOol- lum, 91 Ind. 173; Conn vs. State ex rel. Stutsman, 125 Ind. 514: 25 N. E. 443: Doll vs. Crume, 41 Neb. 655; 59 N. W. 806; Kaufman vs. Cooper, 46 Neb. 644: 65 N. W. 796; StefFes vs. Lemke, 40 Minn. 27; 41 N. W. 302. It is said that tbe double func- tion contemplated bv this statute in- volves a double liability on, the bond, and that each oMigee can recover the full amount of the penalty from the suretv. In (Griffith vs. Eundle, 23 Wash. 4.53: 63 Pnc. 199, a eovernment con- tractor beirg in default, the surety completed the contract and expended in so doing a sum in, excess of Vhe penalty on the bond, and was there- after sued upon the bond by ma- terial and labor claimants, and re- covery was allowed. The Court said: "The practical effect of the statute, and others of similar character, in a number of states, seems to be to confer a special lien in favor of such persons who furnish labor and ma- terial, and to substitute the bond in the place of the public building as a thing upon which the lien is to be charged. Such liens evidently appear, from an inspection of the current legislation, to be favored, and the Courts have usually adoT>ted a liberal rule of construction in their enforcement." 6i'o\,eightman vs. National Trust Co., 208 Pa. 449; 57 Atl. 879. In this case the bond was given to a. mortgagee to indemnifv him against loss or damage resulting from the failure of the principal to erect cer- tain buildings upon the mortgaged premises and to make certain street improvements, and it is held that the bond created no liability to pay for the cost of erecting the build- ings or installing the street improve- ments — but merely a liability to pay the deficiency caused by the impair- ment of the security because of the failure to perform the contract. PEIVATE OBLIGATIONS. ■ 211 being perlected, the sureties upon the bond to " save harmless from liens," or to turn over the building " free from liens for labor and material," will not be liable. The obligee by pre- venting the happening of the condition which forfeits the bond, has deprived himself of recourse to the bond, since by strict con- struction there has been no breach of the terms of the bond, and furthermore, the obligee cannot show to a certainty that the labor or materialmen would have perfected their liens within the time limited by law, teven if their claims had not been paid." Where the bond recites that it is to indemnify the owner against liens and " all money which he may pay to other persons on account of the work," it was held that the sureties were liable for advancements made by the owner in payment of labor and material to prevent liens.*^ A bond given to a mortgagee to indemnify him against liens which may arise in the construction of a building upon mort- gaged premises, was held not to be an undertaking for the benefit of lien holders, and enforceable by them, but was limited to such damages as result to the mortgagee by reason of the liens, and that if the security was not impaired, there would be no liability upon the bond even though the liens attached."* A bond merely to save the owner harmless against liens is not available to the lien holders."' §132. Alteration of the principal contract as a defense to sure- ties upon the bond. A material alteration in a contract secured by bond will re- lease the bond. Sureties cannot be held for a default in the per- formance of duty, where such duty is not in terms specified, either in tiie undertaking itself, or by reference to the main con- tract, and the equities of suretyship will not permit alteration of these duties, without the consent of the surety, except upon the condition of his discharge. 6«Bell vs. Paul, 35 Neb. 240; 52 vs. Waleen, 52 Minn. 23; 53 N. W. N. W. 1110. 867. e'Oberbeek vs. Mayer, 59 Mo. oo Stetson & Post Mill Co. vs. App. 289. McDonald, 5 Wash. 496; 32 Pac. «8 American Bldg. & Iioan Assn. 108. 212 THE LAW OF STJBETYSHIP. Such a rale 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 duly upoii 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 persona in a position of trust, will be released by a change in the oflSce 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.'" 70 Ante Sec. 72. 7iJudah Ts. Zimmerman, 22 Ind. 388. ''2 Baltimore First Nat. Bank vs. GeT-Ve. ,fi8 Md. 448. See also American Telegraph Co. vs. Lennig, 139 Pa. 594; 21 Atl. 162; Garnett vs. Farmers' Nat. Banlc, 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." This was construed to be limited to the duties of the principal as bookkeeper, or in any other position of trust in the 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. PBIVATE OBLIGATIONS. 213 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.'* ITeither -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 their principal to any other of- fice. They might have been willing to be bound for him while he was bookkeeper, or temporarily assigned to the discharge of other duties, but yet not willing to be bound if he 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 strictissimi 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 j)rincipal 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; US. W. 632; Wallace vs. Exchange Bank, 126 Ind. 265; 26 N. E. 175. 73 Eastern Bailroad 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 groimd 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. 7*Harrisburg Sav. & Loan Assn. vs. U. S. Fidelity & Guaranty Co., 197 Pa. 177; 46 Atl. 910. 214' THE LAW OF SUEETYSHIP. tain territory that ihe 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 which 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.'' §133. 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 ihe 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, whidi 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." 75 Wheeler & Wilson Mfg. Co. ts. ble only so long as the overseer was Brown, 65 Wis. 99; 25 N. W. 427; continued 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. T8 Frank vs. Edwards, 8 Welsh. tt North Western R. R. Co. vs. H. & G. 214, Parke, B.: "If the Whinray, 10 Ex. 77. sureties had thought that the amount '» Ante Sec. 79. of the salary was an essential in- fo 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 Ha- surety. His obligation is voluBr PEIVATE OBLIGATIONS. 215 Changee 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 is already implied in the tenor of the bond." An interlineatioii. 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 pre- 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.** §134. 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 stetement which he has led another to be- lieve is true, and who has acted upon that belief. tary, without any consideration moving to him, without benefit to him, entered into for the accom- modation of his principal, and gen- erally, also, for that of the obligee; and courts see to it that his liabil- ities thus incurred are not enlarged beyond the strict letter of his under- taking. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. His con- tract cannot be changed in any re- spect. Whether an alteration is or is not to his benefit, is not open to inquiry." '* Rowley vs. Jewett, 56 Iowa 492; 9 N. W. 353. 81 Western Bldg. & Loan Assn. vs. Fitzmaurice, 7 Mo. App. 283. 82 White Sewing Mach. Co. vs. Dakin, 86 Mich. 581; 49 N. W. 583; Schlageck vs. Widhalm, 59 Neb. 541; 81 N. W. 448. ssXander vs. Commonwealth, 102 Pa. 434. But see Nesbitt vs. Turner, 165 Pa. 429; 26 AtL 750, where the al- teration was of such a character that it was held to raise the pre- sumption of an alteration after de- livery. Westmoreland vs. Westmoreland, 92 Ga. 233; 17 S. E. 1033; Dangel vs. Levy, 1 Idaho 722; Brand vs. Johnrawe, 60 Mich. 210; 26 N. W. 883. 8* Rogers vs. Shaw, 59 Cal. 260. 216 THE LAW OS- SUBBTYSHIP. In applying the doctrine of estoppel, it is wholly irrelevant as to whether the recitals are true or not, if it is shown that the representation has in fact been acted upon. , A surety upon a bond is estopped from denying that the con- tract between the principal and obligee has been duly executed, where such eixecution 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 trusty the surety will be estopped from denying the appointriient ; '* 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 be." Again, whBre a bond recited the words, "Sealed with our seals " it was shown that the seal was affixed after the signing, and ,wi-]thout '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 affixed 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.'' Where a bond recites that the contract had been executed as of one date, the sureties are estopped from asserting that the i^contract was actually signed on some other date."" 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 85 Hayden vs. CJook, 34 Neb. 670 ; ss Metropolitan Life Ins. Co. vs. 52 N. Wi- 165; -Price vs. Seott, 13 Bender, 124 N. Y. 47; 26 N. E. 345, Wa«h. 574; 43 Pac. 634. Contra — ^Town of Barnet vs. Ah- 80 Phenix Ins. Co. vs. Findley, 59 bott, 53 Vt. 120. Iowa 591; 13 N. W. 738; Lionberger »» State vs. Humbird, 54 Md. 327; vs. Krieger, 88 Mo. 160 ; State Bank Taylor vs. Glaser, 2 Serg. & Rawle vs. Chetwood, 8 N. ,T. Ti. 1 ; Hauen- 502. stein vs. Oillespie, 73 Miss. 742 ; 19 soa Eed Wing Sewer Pi"e vs. Don- South. 673- Henry County vs. Sal- nelly. 102 Minn. 192; 113 N. W. 1. mon, 201 Mo. 136: 100 S. W. 20. so Keen V8. Whittington, 40 M4. 87 Wiashinsfton Co. Ins. Oo. vs. 489. Golton, 26 Conn. 42. PEIVATE OBLIGATIONS. 217 the bond, it ddes not preclude the party signing from stowing the truth." If the bond does not speak the truth by reason of fraud, the recitals may be contradicted."^ |135. Heasure of damages upon breach of the conditions of a bond. The early construction of a bond to secure a private obligation ^as 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, iJiat upon default of such specific per* formance, he be required to pay the sum named as penalty as liquidated damages.'* 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 Aould 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, »i Eeed vs. MeCourt, 41 N. Y. 435. sb Hardy vs. Bern, 5 T. E. 540 SB-'m^'n^^wIsQ^^^"' ^ ^^^' ^«=khain vs. Drake, 2 H. L. 579, But seVKuriger Vs. Joest, 22 Ind. Parke, B. {629) : " That statute in App. 633; 52 N. E. 764; 54 N. E. effect makes the bond a security for *14- the damages really sustained." oZfZ'Ts, ;t 8f« vi ^: ^ ^r* n- '^'"•"="^' ' =''™- * son, 10 Mod. 515; Hobson vs. Tre- Cr. 650; Grey vs. Friar, 15 Q. B. vor, 2 P. Wms. 191. 891. 0*8 and 9 Wm. Ill, c. 11, Sec. 8. 218 THE LAW OF SUEETYSHIP. that the amount named in the bond is intended as a mere se- curity fixing the limit of liability, and only so much of the penalty is recoverable as adequately, covers the damages sus- tained."' The authorities, both of this 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 no injury is shown, nominal damages only are recoverable.'^ AH damages resulting from the breach of the bond may be »6 Davis vs. Gillett, 52 N. H. 126 ; Rawlings vs. Adams, 7 Md. 26; Wright vs. Wright, 49 Mieh. 624; 14 N. W. 571; Longfellow vs. Mc- Gregor, 61 Minn. 494; 63 N. W. 1032; Hirt vs. Hahn, 61 Mo. 496; People's Bldg. &, Loan Assn. vs. Wroth, 43 N. J. L. 70. City of Aberdeen vs. Honey, 8 Wash. 251; 35 Pae. 1097. Where the bond is to secure the payment of an annuity, it was held that the damages recoverable upon a breach consist of the payments in default, and not the penal sum named in the bond. Cairnes vs. Knight, 17 O. S. 69. So also where the bond is to secure the payment of premiums upon a policy of 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- sulting 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 vs. 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. 219 recovered, although such damages accrue in part after the commencement of the action. °' If the parties intend the sum named in the hond to he treated as liquidated damages, such ascertained intention will he 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. ^'"' If the purpose of the parties to a bond in fixing the amount of damages to be paid is merely to secure prompt performance of the agreement the bond will be treated as a penal one, and no more than actual damages will be recoverable on a breach.^""" Stipulations in building contracts for the payment of a fixed sum per day for each day of delay beyond the date agreed upon in the contract, amount to liquidated damages, and may be recovered without regard to the actual loss resulting from the breach.^"^ 98 Spear vs. Stacy, 26 Vt. 61. 99 Houghton vs. Pattec, 58 N. H. 326; Monmouth Park Assn. vs. Wkl- 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; West- fall vs. Albert, 212 111. 68; 72 N". E. 4. loottWestfall vs. Albert, 212 111. 68; 72 N. E. 4. 101 Downey vs. O'Donnell, 86 111. 49; Louis vs. Brown, 7 Ore. 326; Louisville Water Oo. 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 apiarent 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 da-nige resulting from delay in the perfoi-mance of a contract, in many cases, cannot be ascertained, and in their nature are so uncertain as to raise an implica- tion of an intent to treat the dam- age as liquidated. Such has been the Vasis of many holdings. Collier vs. Bctterton, 87 Tex. 440; 29 S. W. 467 ; Keichenbach vs. Sage, 13 Wash. 364; 43 Pae. 354; Malone vs. Philadelphia, 147 Pa. 416; 23 Atl. 628; Wolf vs. Des Moines & Pt. Dodge Ry. Co., 64 Iowa 380; 20 N. W. 481; Hennesey vs. Metzger, 152 111. 505; 38 N. E. 1058. Kilson 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. E. Oo. 132 Pa. 445; 19 Atl. 276; Cochr«in vs. People's Rv. Co., 113 Mo. 359- 21 S. W. 6; Colwell vs. Lawrence, 38 N. Y. 74. Miller, J. "It is scarcely to be sup^iosed, that the parties intended to fix an amount so extravaaunt, and which would be, if allowed as 220 THE LAW OF SUBBTYBHIF. The penalty of a bond cannot be enlarged by a contempora* neous agreement, and will be limited in any event, to the sum named in the instrument.^"" §136. 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 aa a condition of the grants and to insure the performance of the tenns 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 '^f 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, 29 Neb. Nor is any such intention to be pre- 385 ; 45 N. W. 472. sumed, upon the hypothesis that the "^ Oregon Ey. & 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 PEIVATE OBLIGATIONS. 221 Thus where tlie 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 Kailroad would he 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 in 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 Apolitical 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 practicable, 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 damages 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- poration should pay the State, absolutely and for its own use, the sum named in the bond."^"' 103 Mr Justice Mathews, in Clark vs. Barnard, 108 U. S. 436, 459; 2 S. Ct. 878. 222 THE LAW OF SURETYSHIP. §137. Interest as an element in the measure of damages. A surety upon a bond is liable for interest upon the dam- ages ascertained from the daie 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 amoimt recovered beyond the sum named as penalty in the bond.^"" Where the condition of the bond is for the performance of an act and not the payment of money, the recovery thereon is limited to the amount of the penalty and interest thereon will run only from the date of entry of the judgment.^""" .§138. Bonds to induce violation of law are void. Where 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- See also Inidianola vs. Gulf, W. T. & P. Ry., 56 Tex. 594. Where a bond was executed to a city in the sum of $50,000, conditioned upon- the construction of a railroald 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 dani.iges. 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. B. 862; United States vs. Poulson, 30 Fed. Rep. 231 : Brighton Bank vs. Smith, 94 Mass. 243; Brainard vs. Jones, 18 N. Y. 35; EUyson vs. Lord, 124 Iowa 125; 99 N. W. 582; Whereatt vs. Ellis, 103 Wis. 348; 79 N. W. 416; American Surety Co. vs. Pa- cific Surety Co., 81 Conn. 252; 70 Atl. 584. It has been held that where a sura 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. lOB Curtis vs. United States, 100 U. S. 119; United States vs. Poul- son, 30 Fed. Eep. 231; Prink vs. Southern Express Co., 82 Ga. 33; 8 S. E. 862. 106 Beers vs. Shannon, 72 N. Y. 292; Burehfield 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., 183 111. 70; 55 N. E. 647; Pen- nell vs. Card, 96 Me. 392; 52 Atl. 801; Ellvson vs. Lord, 124 Iowa 125; 99 N. W. 582. Contra — ^New Home Sewing Ma- e^iine Co. vs. Seago, 128 X. C. 158: 38 S. E. 805 ; People's Savings Bank vs. Oanipnu, 124 Mich. 106; 82 N. W. 803 ; Board of Education vs. Na- tional Puretv Co., 183 Mo. 166; 82 S. W. 70. looo Sachs vs. American Surety Co., 72 App. Div. 60 (N. Y.). PEXVATE OBLIGATIONS. 223 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 tlie 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. 101 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. io» 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.) 108. 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- Tenqr, 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. Payton, 91 Ind. 202. lis Wiley vs. Baumgardner, 97 Ind. 66; Alger vs. Thacher, 19 Pick, 51. Homer vs. Ashford, 3 Bing. 326, Best, 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 to employ his talents, his industry or his capital, in any useful undertak- ing in the kingdom, would be void." 224 THE lAW OF SUEETYSHIP. . It. is held that where a Corporation does business in a State contrary to the Statutes, all its acts are illegal, and that if offieere and agents of such cor^ration 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.^^" 11* Bank of Newberry vs. Stegall, 41 Miss. 142; Daniels vs. Barney, 22 Ind. 207. Thome vs. Travellers' Ins. Co., 80 Pa. 13. "There can be no doubt of the constitiitional 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 case 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. 225 §139. Bonds to prevent performance of public duty or to indnce 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 becaaae 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 wi-it of execution or attaehment 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, his 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 "6 Harrington's Adminiatrator ex rel. vs. Harrington, 41 Mo. App. vs. Crawford, 61 Mo. App. 221. 439; Hardeaty vs. Price, 3 Col. 556 See. also Blackett vs. Crissop, 1 Buffendeau vs. Brooks, 28 Cal. 641 Lord Eaym. 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 226 THE LAW OF STIEETTSHIP. peraon. 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 lihe 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."' §140. 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 "'Wolfe vs. McClure, 79 111, 564; Miller vs. Ehoades, 20 O. S, 494; Mays vs. Joseph, 34 O. S. 22 Stark vs. Eaney, 18 Cal. 622; Forni quet vs. Tegarden, 24 Miss. 96; Mc- Cartney vs. Shepard, 21 Mo. 573 Foster vs. Clark, 19 Pick. 329. 120 Ante Sec. 97 »i8 Morgan vs. Hale, 12 W. Va. 713; Collier vs. Windham, 27 Ala. 291. lis Westervelt vs. Frost, 1 Abb. Pr. (N. Y.) 74. See also Oriffiths vs. Hardenbergh, 41 N. Y. 464. PEIVATE OBLIGATIONS. 227 creditor by dealing direct with the third party, might oonfer 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 paymentj^^* Where it is showu 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^"* 1141. Statutes of limitations as a defense to sureties upon a bond. The Statutes of various States provide for a peri'^d 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. CourtSj 5 Har. A, i2» Shrewsbury Savings Institu- John. (Md.) 78. tion's Appeal, 94 Pa. 309. 122 Gibson vs. Eix, 32 Vt. 824; i2« 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 560; Price vs. Barnes, 7 Ind. App. 1. upon any bond given to the Pres- 12* Smith vs. Jacksonj- 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 corporation, J. Ii. 100. with conditions for his good behavior. 228 THE LAW OF SUEETTBHIP. 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 %en uniform in this country. For the most part it is assimied 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 the 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 them " 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 fraudulraitly 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 within 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 discovery.^"' 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, either principal or sureties, after 20 Johns. 33, Spencer, C. J. : " The the expiration 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. 229 ■ 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 behalf 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 bound 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 aflSrmatively 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." 129 Bree vs. Holbech, 2 Doug. 655 ; Reynolds vs. Hennessy, 17 E. 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 knowledge 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. 230 THE IaA.w of suebtyship. While the principal who is seeking to use the Statutes to cover a fraudulent act may properly be denied the protection of Hie Statutes, the surety who is innocent of fraud must be held, if at all, upon the theory that the contract of suretyship makes his liability co-extensive with the principal, without regard to the particular reasons whereby the liability of the principal is established. A surety is bound by the fraudulent conduct of his principal, and although without fraud on his own part, he must 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 the surety of watching liie 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 whidi 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 imtil the obligee 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 tJie 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- suflScient to exonerate them from ceal its true condition by false re- its performance." Wayne vs. Com- ports made to the comptroller of merdal Nat. Bank, 52 Pa. 343. the currency and by false entries i32 Campbell vs. Rotering, 42 upon the books of the association. Minn. 115; 43 N. W. 795. But this negligence cannot avail PKIVATE OBLIGATIONS. 231 |142. 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 Beekham 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 K. R. Co., 69 N. Y. 343 ; Sohaefer 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. Asch, 53 Minn. 446; 55 N. W. 604. Miller vs. Kingsbury, 28 111. App. 532; Moore vs. House, 64 HI. 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, 107 111. 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. 650; Fairchild vs. North Eastern Mut. Life Assn., 51 Vt. 613. i3*Henricus vs. Englert, 137 Jf. 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. 232 THE XAW OF SURETYSHIP. The rule is, however, subject to the qualification that tiiere 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 the 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/*^ 13B Jefferson vs. Asch, 53 Minn. 446; 55 N. W. 604; Carnahan vs. Tousey, 93 Ind. 561; Leake vs. Ball, 116 Ind. 214; 17 N. E. 918; Piano Mfg. Co. vs. Burrows, 40 Kan. 361 ; 19 Pac. 809 ; Mumper vs. Kelley, 43 Kan. 256; 23 Pac. 558; N. Y. Life > Ins. Co. vs. Hamlin, 100 Wis. 17; 75 N. W. 421. As to bonds given to secure build- ing contracts, with covenants to pay labor and material claims, see Ante Sec. 149. 136 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 (Sec. 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." , 13' Tweddle vs. Atkinson, 1 Best. & Sm. 393; Price vs. Easton, 4 Barn. & Ad. 433 ; Gandy vs. Gandy, L. E., 30 Ch. Div. 57 ; In re Rother- ham Alum & Chem. Co., L. E., 25 Ch. Div. 103. 13S Lilly vs. Hays, 5 Ad. & Ell. 548. i39Waddell 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 OBUGATIONS. 233 §143. Joinder of parties plaintiff. All persons for whose benefit a contract is made must join in 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 ether good reason, such as in some jurisdictions, the death of one joint obligee, no action can be maintained unless all are made plaintiffs."^ But where a bond is made payable to a principal or a designated agent, either may bring suit upon it.^*^' 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 <3ould 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 transaction may nevertheless be joint.'*'' 1*2 Bradburne vs. Botfield, 14 M. rate action on the bond. Donnell vs. 6 W. 559 ; Phillips vs. Poole, 96 Ga. Manson, lOS Mass. 576. 515; 23 S. E. 504; Burns vs. Fol- 1*21 Files vs. Reynolds, 66 Ark. lansbee, 20 111. App. 41; Sims vs. 314; 50 S. W. 509. Harris, 47 Ky. 55 ; Wallis vs. DiHy, i*^ Germania Fire Ins. Co. ViS. 7 Md. 237; Dnn^ Executor vs. Hawks, 55 Ga. 674. Parker, 2(7 Fed. Rep. 263i; Phillips See also Hees vs. Nellia, 65 Barb, vs. Sanger Mfg. Co.. S8 111. 305; 440. Norma vs. Conlan, 68 N. J. L. 88; 1** Sprague vs. Wells, 47 Minn 52 Atl. 210. 504; 50 N. W. 535; White vs. Bow- In an action of debt on an exeeu- man, 78 Tenn. 55; Renkert vs. El- tor's bond, a person who is a party liott, 79 Tenn. 235; International to the bond is a necessary party Hotel Co. vs. Flymn, 141 111. App. plaintiff, although he has no inter- 532. est in the property. Stevens vs. But see McMahon vs. Webb 52 Partridge, 88 111. App. 665. Miss. 424. In Massachusetts, where one of ^^^ Lillard vs. Lillard, 44 Ky. 340 ; several ioint obligees is deceased, Haughton vs. Bayley, 31 N. C. 337*. the survivor may maintain a sepa- 234 THE LAW OF SXJKEOTYSHIP. §144. 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 and Illinois 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 code 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 testatoris}^" "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 liiability.'"' Where the bond of an employee recites that the surety will reimburse the obligee for loss sustained by the defalcation of "6 state vs. Bennett, 24 Ind. 383; 82 Tex. 653; 18 S. W. 152, HoUy, lIcKee vs. Griffin, 60 Ala. 427; Poul- J.: "As the record stands, the sure- lain vs. Brown, 80 Ga. 27 ; 6 S. E. ties on the bond executed in Sep- 107; Fidelity & Deposit Co. vs. tember, 1884, are liable, unless the Aultman, 58 Fla. 228; 50 So. OM. second bond was executed as a suib- 1-" Leonard vs. Speidel, 104 Mass. stitute for and in lieu of the first 359; Gottfried Brewing Co. vs. Me- bond; and the sureties on the bond • Donald, 146 III. App. 601. executed in November, 1886, are 1*8 State vs. Powers, 52 Miss. 198. also liable, unless the defalcation or 1*9 The Ohio Code provides: "One shortage of Ponder occurred prior to or more of the persons severally the date of their bond. Neither of liable on an instrument may be in- these facts appear. But on the con- cluded in the same action thereon." trary, it is distinctly stated that Sec. 5009. the second bond was executed as 150 Lawrence vs. Doolan. 68 Cal. 'additional security,' and it does 309; 5 Pac. 484; 9 Pac. 159; Green appear that the shortage or defalca- vs. Conrad, 114 Mo. 651; 21 S. W. tion transpired subsequent to the 839. execution of the second bond. These Contra — ^Metz vs. The People, 6 conditions present a case of a com- Col. App. 57; 40 Pac. 51; State vs. mon liability on the part of all of Banks, 48 Md. 513. the sureties relating to the same sub- 151 Singer Mfg. Co. vs. Ponder, jeet matter, and where the right of PEIVATE OBLIGATIONS. 235 the employee, also that the employee will indemnify the surety, against loss on the bond, 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. 162 American Bonding & Trust Co> vs. Milwaukee Harvester Co., 91 Md. 733; 48 Atl. 72. CHAPTER VI. 6ec. 145. Sec. 146. Sec. 147. See. 148. S«c. 149. OFFICIAL BONDS Who are Public Officers. The Duty of a. Public Officer to Give a Bond Arises frcm Sitatute. Bonds of Deputies. Qualification and Approval of Sureties. The Signing of the Bond by the Principal. Sec, 150. Liability ot Sureties as Affected by Failure to Deliver or Fur- nish the Bond Within the Time Required by Law. Sfec. 151. Sureties Upon Official Bonds Discharged by Alterations to Which They Do Not Consent. Sec. 162. Alteration in the Duties of the Principal by Amendment to the Law. Sec. 153. Extension of Tenure of Office by Legislative Act. Sec. 154. Special Bonds Given by Officers Who Have also Given General Bonds. Sec. 155. Concealment of Matters Material to the Risk. Sec. 156. Bonds of Public Officers not Retroactive and Cover only the Period Named in the Bond. Sec. 157. Same Subject — ^Where the Wrongful Act was Partly in One and Partly in Another Term. Sec. 158. Second Boiid Given in the Same Term Cumulative. Sec. 159. Liability of Surety for the Negligence or Error in Judgment of a Public Officer. Sec. 160. Liability of Siureties for Failure of Public Officer to Account for the Use of Public Funds. Sec. 161. Sureties not Liable for Defaults of Principal in not Perform- ing His Contracts with Persons Dealing with Him in His Official Capacity. Sec. 162. Sureties Upon Official Bonds are not Released by the Negligence or Misconduct of Other Officials. Sec 163. Sureties not Liable for Failure to Account for Money Received by the Principal Outside the Scope of His Office. Sfec. 164. Liability Upon Bond of Sheriff or Constable for Trespass and Other Wrongs Committed Colore Officii. Sfec. 166. View that Sureties are not Liable for Wrongs of Sheriff or Constable Committed Colore Officii. 15tec. 166. Liability for Loss of Public Money by Failure of the Bank Used as Public Depository. Sec. tef. Liability for Loss of Public Money by Theft or Robbery. Sec. 168. Liaibility Against Judicial Officers Acting Without Jurisdictdon. Sec. 169. Liability of Judicial Officers for Ministerial Acts. 236 OPFICIAIi BONDS. 237 Sec. 170. Liability of Principal for Acts of his Deputjf. Sec. 171. Liability on Bond of a Notary Public. Sec. 172. Defenses in, Actions Upon Bonds of Public. Officers. Sec. 173. Presumption that Official Duty has been Performed. Sec. 174. Evidence Against Sureties on Official Bonds. Sec. 175. Same Subject — Judgment Against Principal as Evidence Against the Surety. Sec. 176. Same Subject — View that Judgment Against the Principal is Prima Facie Evidence Against the Surety. Sec. 177. Same Subject — View that Judgment Against the Principal is Conclusive Against the Surety. Sec. 178. Limitations Upon Actions Against Sureties on Official Bonds. .§145. 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 arises 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.^ " For a distinction between a pub- boken, 82 A. 528 ; 82 N. J. L. 200. lie office and public employment, i Nichols vs. MacLean, 101 N. Y. see Brown vs. Russell, 166 Mass. 528; 5 N. E. 347, Andrews, J.: 14; 43 N. E. 1005; Throop vs. Lamg- "The right to hold an office and to don, 40 Mich. 673 ; State vs. receive the emoluments belonging to Broome, 61 N. J. L. 115; 38 Atl. it does not grow out of any con- 841; U. S. vs. Maurice, 2 Brock. tract with the State, nor is an office (U. S.) 96; Lucas vs. Putrall, 84 property in the s-'er Lodnfl sr McLeod vs. State, 69 Miss. 221 ; County vs. U. S. F. & G. Co., 42 13 South. ?68: Hall vs. State, 69 Mont. 315: 112 Pac. lOfiO. Miss. .529: 13 South. 38. snTrtistpps vs. Shpik. 119 111.579; ss JohnstoTi vs. Kimball. 3T Mich. 8 N. T;. 1»9: Dppr T/o-liTe C .^ntv vs. 187, Oamphell, G. J.: "Where sev- U q -p (^ fj. f!o.. 4" M"''*^. 315- 112 eral names are written as co-obli- Pae. 1060. In which it was also pors and one of them is called upon held f^at wTihere t>o i'mino' of a to sign it, he does so upon an im- bond was upon condition that the plied understanding that he can in principal sign, which condition was OFFICIAL BONDS. 249 It is also 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.°° §150. 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 much 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 be- ease of being held responsible, not It was claimed on the argument that only have his right to contribution, the sureties would have a 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 he has right to insist that he will the bond, he would not only be es- not be bound except upon his own topped by the judgment from con- 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, lY 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. 228. the plaintiflF to show what is sub- s" People vs. Hartley, 21 Cal. 585. Btantially a new contract. ... [ 250 THE LAW OF SUEETTSHIP. come vacant by failure to deposit the bond witliin the time pre- scribed by law, yet such failure does not ipso facto create a va- cancy nor prevent the officer from thereafter qualifyingi, pro- viding the bond is furnished before steps are taken to declare the office vacfent. 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." *" 10 State vs. Ruff, 4 Wash. 234; 29 Pae. 999, Hoyt, J. : " Under our 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 puh- lic. If the provisions for such quali- fication are not timely complied with the public can protect itself by 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- vides that " Every office shall be- come 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 statutory enactment setting forth specifically 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- horred 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 in 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 anywhere in the law." See also, Chicago vs. Gage, 85 111. 593 ; People vs. Holley, 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 ; Paxton vs. State, 59 Neb. 460; 81N. W. 383. 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 fadlure to file the bond does not ipso facta va- OFFICIAL BONDS. 251 If an officer tihaugli 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 Rep. 216; Cronin vs. Stoddard, 97 N. Y. 271. *iSehufE 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; hut 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 tho 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. *3 State vs. Beard, 34 La. Ann. 273. 4* People vs. Perkins, 85 Cal. 509 ; 26 Pac. 245; Johnson vs. Mann, 77 Va. 265; In re Atty. Gen., 14 Fla. 277. See also Falconer vs. Shoves, 37 Ark. 386. The holding in this case 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. 252 THE LAW OF SUBETYSHIP. If the officer fails to make a seasonable delivery of his bond, and defaults occur after entering upon the duties of his office, but before the bond is approved, the sureties will be 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.*° §151. Sureties upon official bonds discharged by alterations to wMch 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 made effective 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 ease, the bond of a township *« 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 ton, 2 Head (Tenn.) 613; Doane "1869 and 1870." This was held vs. Eldridge, 16 Gray 254. an immaterial alteration. This hold- *TRudesill vs. County Court of ing was based upon the fact that the Jefferson Co., 85 HI. 446. law required the o£Scer to make his OFFICIAL. BONDS. 253 Thci addition of the name of a new Surety without the knowl- edge of the first Surety is not a material alteration/* It has been held that whe]|§|^>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 tljat the amount of the penalty is filled in by another, and such other additions made as are necessary to give the instrument effect. '"' §152. Alteration in the duties of the principal by amendment to 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 management 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 terms of 451; 34 Pac. 1046; Dedge Vs. the bond. Branch, 94 Ga. 37; 20 S. E. 65';. > <8 Governor vs. Lagow, 43 111. 134. " Ante Sec. 163. 254 THE LAW OF SUEETYSHIP. 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 T^reasurer."* 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 tlje time the bond was executed, yet they will not thereby be discharged as to defaults in the regular duties of office. Thus a (JoUector of customs was by act of Congress required to "52 People vs. Vilas, 36 N. Y. 459, Cfrover, 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 ofiSeers, and the continued existence of this power is known to the officer and his 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 eifect 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 functions 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. Bs King vs. Nichols, 16 0. S. 80. See also Marney vs. State, 13 Mo. 7. 0* Dawson vs. State, 38 O. S. 1. See also Commonwealth vs. Holmes, 25 Gratt. 771; United States vs. McCartney, 1 Fed. Rep. 104; Prickett vs. People, 88 111. 115. OFFICIAL BONDS. 255 pay over to his superior officer the money collected by him ; 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, but 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 responsibility 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- doubtedly true that such an addi- tion of new duties does not render void the bond of the officer as a security for the performance of the duties at first assumed. It will still remain a security for what it was 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 ease the juris- diction of a bailiff was increased whereby new duties were imposed with additional fees, held — " It may be considered settled law that, where there is » bond of suretyship for an officer, and by the act of the par- ties or by Act of Parliament, the nature of the office is so changed that the duties are materially al- tered, so as to affect the peril of the sureties, the bond is avoided." The English rule stated above has not been adopted in the United States and has been somewhat modified in the later English cases. Mailing Union vs. Graham, 5 L. E. C. P. 201; Skillett vs. Fletcher, 1 L. R. C. P. 217. 5s Sacramento Oo. vs. Bird, 31 Gal. 66; Loving vs. Auditor of Publio -A^ccounts, 76 Va. 942. 256' THE LAW OF SUEETYSHIP. 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 thoipower of the legislature to im- pose duties requiring different qualifications to perform, and involving exposure to defaults which could not ooeur imder the original scope of the office/^ §153, 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 bonds as the limit in amount, and the Legislature cannot ex- change either stipulation in the surety's contract without his consent."* S'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 Legisla- when the bond was given, it can- ture of the duties of an office of not be justly said to have been the same nature or like kind as within the contemplation of the 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 Pac. 428;, bond is executed with a knowledge White vs. East Saginaw, 43 Mich, of the right, and the practice of the 567 ; 6 N. W. 86; District of Co- Legislature, to enlarge the duties lumbia vs. Pelty, 37 App. D. C. 156. of the officer, and for every addition- as Peppin vs. Cooper, 2 Bam. & al duty imposed by competent au- Aid. 431; Bigelow vs. Bridge; 8 thority, which is not in kind, but Mass. 274; Moss vs. State, 10 Mo. OPPIOIAIi BONDS. 257 "Where the bond recites that it covers the term of oflSee, 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. But where an appointment is to a permanent office having a definite and limited term, the obligation of a surety is not extended beyond the term for which the appointment is made though the statute provides for his continuation in office beyond the term.""" §154. 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 in 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 def aults» in the performance of new and special duties added to the office after the making of the bond.®" But the 338; State Treasurer vs. Mann, 34 son vs. State, 37 Miss. 518. These, Vt. 371; Patterson vs. Freeland Tp., cases arise under a statute provid- 38 N. J. L. 255; Miller vs. Stewart, ing that a public oiEcer shall hold 9 Wheat. 680 ; Dover vs. Twombly, over until his successor shall qualify. 42 N. H. 59 ; Smith vs. United Where there is no such statute the. States, 2 Wall. 219; Welch vs. Sey- rule has not always been applied. mour, 28 Conn. 387 ; Brown vs. Lat- Illinods Industrial Home vs. Dreyer timore, 17 Cal. 93; King Oo. vs. 150 111. App. 574. Perry, 5 Wash. 536; 32 Pac. 538; Nbrridgewock vs. Hale, 80 Me Mullikin vs. State, 7 Blackm 362; 14 Atl. 943. (Ind.) 77. Where a treasurei- misajppropri- Oontra — Commonwealth vs. I>rew- ated public funds on the day foUow- ry, 15 Gratt. (Va.) 1. ing the expiration of his term and 60 Baker City vs. Murphy, 30 before his successor had qualified, Oreg. 405; 42 Pac. 133; Administra- held — ^the sureties were not liable, tor vs. McKowen, 48 La. Ann. 251; See also Dover vs. Twomblv 42 19 South. 328; Long vs. Seay, 72 N. H. 59. Mo. 648 ; Montgomery vs. Hughes, »9« ATneriea.n Surety Co. vs. Gaa- 65 Ala. 201 ; Taylor vs. Sullivan, 45 kill, 85 Vt. 358 ; 82 "A. 218 Minn, 309; 47 IST. W. 802; Thiomp- oo Ante Sec. 158'. 258 THE IjAW op suretyship. 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 ttat the treasurer "shall safely keep and pay over, according to law, all moneys which come into his hands for State, county, township, school, road, 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 jsehool 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."' §155. Concealment of matters material to the risk. The rule of law that sureties will be released by a conceal- ment by the obligee of a previous defalcation of the principal or other matters material to the risk is inapplicable to bonds executed for public officers."'" 81 State vs. Felton, 59 Miss. 402 ; «» Board of Supervisors tb. IShl- Broad vs. Paris, 66 Tex. 119; 18 era, 45 Wis. 2&1; Board of Super- S. W. 342. visors ts. Pabst, 70 Wis. 352; 35 N. Sureties upon the general bond W. 337. are not liable for defaults ia the See also Commonwealth vs. Toms, performance of a special duty for 45 Pa. 408 ; State vs. Johnson, 55 •which a bond is required, even Mo. 80; Williams vs. Morton, 38 though such additional bond ia not Me. 47. in fact given. Columbia Co. vs. But see Kempner vs. Galveston Massie, 31 Oreg. 292; 48 Pac. 694; Co., 73 Tex. 216; 11 S. W. 188. County Board vs. Bsuteman, 102 N. «3o Fidelity & Deposit Co. vs. Com- C. 52; 8 S. E. 882; Oostley vs. Al- monwealth, 104 Ky. 579; 47 S. W. lesn, 56 Ala. 198. 579; 49 S. W. 467; Hogue vs. State, 82 State vs. Young, 23 Minn. 591; 28 Ind. App. 285; 62 K E. 656. County vs. Tower, 28 Minn. 45; 8 N. iW. 907. OFFICIAIi BONDS. 259 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."^ "Whiler these propositions are properly termed self-evident, yet it has not always been found easy to make 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 several 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 will presume the entire default occurred in the last term;"® and if the sureties upon the last bond would et Ante Sec. 168. 39 N. W. 71; Bruce vs. United »5 Ante Sec. 171. States, 17 How. 437; Hetten va. «o Kelly vs. State, 25 0. S. 567; Lane, 43 Tex. 279; Clark vs. Wil- Pine Co. vs. Willard, 39 Mina. 125; fcinson, 59 Wis. 543; 18 N. W. 481; 260 THE LAW OF SUEETTSHIP. 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 tKe 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 ; that 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 office. 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 wrongful 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- Goodwine vs. iState, 81 Ind. 109; L. 539; Crawn vs. Commom-wealth, Boekenstedt vs. Perkins, 73 Iowa 84 Va. 282; 4 S. E. 721; State vs. 23; 34 N. W. 488; Kagay vs. Tras- Powell, 40 La. Ann. 234; 4 South, tees, 68 111. 75. 40; 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. felter vs. State, 66 Md. 80; 5 Atl. e^Gwynne vs. Burnell, 7 CI. & 410. .Fin. 572; State vs. Sooy, 39 N. J. Contra — Goodwin va SIbate, 81 Ind. 109. OFFICIAIi BONDS. 261 ceived in the second term to square the accounts of the first term, cannot be distinguished from the use of the funds to meet 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 term the sureties upon the first 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."" pay over funds which were on hand a,t 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 bj 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 hia hands. It would not atop with ex- onerating from liability the sure- ties of justices of tihe peace, but would extend equaJly to those of sheriiTs, treasurers, constahles, 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 jiistice was held in trust for the creditor and the only way in which the for- «8 Ingraham vs. Maine Bank, 13 Mass. 208. 89 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 case the condition of the bond was that the sheriff would dis- charge the duties of his office "dur- ing his continuance in office." A-^ 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 him 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 0. S. 382. Freeholders vs. Wilson, 16 N. J. L. HO. Where the officer dies and his personal representatives fail to 262 THE LAW OP SURETYSHIP. 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.'^ Sureties on the bond of an official who has served several successive terms, giving separate and distinct bonds for each term, are only liable for the default occurring during the term for which the particular bond or bonds were given.'^* mer could discharge himself from the trust was by paying it over, upon demand, to the latter. . . . Until demanded, he was required to keep it safely ; and when 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 confciigen- cies by which it might be brought to a close before the regular period for which he was elected. One of these was death; and in such a oaas they knew very well that the obli- gations resting upon him in respect to such funds, were by law cast upon his personal represe.ntaitive." See . Iso Great rUUs vs. Hanks, 21 Mont. 83; 52 Pac. 785; Allen vs. State, 6 Blacki. (In!d.) 252. But if the officer holds over and gives a new bond, the sureties of the second bond are liable for what he had on hand at the close of his first term. Trustees vs. Arnold, 58 III. App. 103. '0 Wapella vs. Bigham, 10 Iowa 39; Scott Co. vs. Ring, 29 Minn. 39S; 13 ISr. W. 181; Bennett vs. State, 58 Miss. 556. 71 Morley vs. Metamora, 78 111. 3«4, ficott, C. 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 siureties 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 ehargefd himself with hav- ing a certain amount of motfey in his hands. That report was ap- proved, and we must presume vb was true. When he was re-elected it was in his own hands as his own successor. These facts appeared upon the public records of the town. The new securities upon the official bond of the supervisor must be held to have had notdce of what api;;'eared on the public records. In contem- plation of law, the money mentione(i in his report was in the hands of the supervisor, and the undertaking of the sureties on his bond was that he should account for it. It was as much his duty to account for what- ever funds were in his hands at the end of the first year, as it was to account for whatever should be re- ceived during the second year." Tin People vs. Bowman, 147 HI. Anp. 6f7; Board of Education vs. Eobinson, 81 Minn. 305; 84 N. W. 105: Stato vs. Csiusey, 93 S. C. 300; 76 S. E. 707. OPPICIAIi BONDS. 263 The burden of proof is on the last surety to show, that the defalcation in fact occurred during a prior term."* §157. Same subject — Where the wrongful act was partly in one and partly in another term. If an 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 return 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 the 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.'^ §158. 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.''* 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.^^ 716 Board of Education vs. Robin- 268; State vs. Sappdngton, 67 Mo. son, supra. 529; Moore vs. Boudimot, 64 N. C. 72Elkin vs People, 4 111. 207; 190. State vs. Roberts, 12 N. J. Li 114; "State vs. Moses, 18 S. C. 366; Tyrce vs. Wilson, 9 Gratt. (Va.) Miller vs. Moore, 3 Humph. (Tenn.) 59; Wooddell vs. Bruffy, 25 W. Va. 189. 465. But see Poole vs. Cox, 9 Ired. L. But see Ingram vs. MaCombs, 17 (K C.) 69. Mo. 558 ; Sherrell vs. Goodrum, 3 ^s State vs. Finn, 23 Mo App Humph. 419. 290. '3 Finch vs. State, 71 Tex. 52; But see Thompson vs. Dickerson, 9 S. W. 85; State vs. Crooks, 7 O. 22 Iowa 360. (Pt. 2) 221; Allen vs. State, 61 Ind. 2i64 THE LAW OP SUBETYSHIP. §159. Liability of surety for the negligence or error in judg- ment 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 re- sulting 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. Wherever the law imposes upon a public officer the per- formance of ministerial duties, the public officer and his bond will be liable to any individual for any injury he may sustain in consequence of the misfeasance, malfeasance or nonfeasance of such officer in respect to those duties imposed upon him.'''"' Thus where a clerk of the Court omitted to insert in a record of a judgment the amount recovered, and the judgment cred- itor 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 defendant'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 at- tachment 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.''' 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.'" Joa Gutschenritter vs. Whitmore, "Strain vs. Babb, 30 S. C. 342; 139 N. W. 567; 158 la. 252; Smith 9 S. E. 271. vs. Zimmer, 125 P. 420; 45 Mont. 's Witkowski vs. Hern, 82 Cal. 282; Howley vs. Scott, 143 N. W. 604; 23 Pac. 132. 257; 123 Minn. 159. 79 Rosenthal vs. Davenport, 38 78 Governor vs. Dodd, 81 111. 162. Minn. 543; 38 N. W. 618. See also Norton vs. Kumpe, 121 so Topping vs. Windley, 99 N. C. Ala. 446; 25 So. 841; People vs. 4; 5 S. E. 14; Spain vs. Clements, Smith, 123 Cal. 70; S5 Pac. 765; 63 Ga. 786. Payne vs. Baehr, 95 Pac. 895; 153 Contra — People vs. May, 158 111. Cal. 441. App. 596. In this case the court OPFIOIAIi BONDS. 265 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 eifort to ascer- tain the duty to be performed.'^ The liability for errors of judgment is not evaded by show- ing 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. '^ §160. 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 inter- est 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 abso- lutely 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. said the act of a. clerk aipproving si United Staies vs. McClane, 74 the bond of a. surety is a quasi- Fed. Rep. 153; Alexandria vs. CJorse, judicial act and the person inijured 2 Cranch (C. C.) 363; State vs. by the negligence of the clerk can Chadwick, 10 Oreg. 46'5; Salt Lake .recover damages only when it is County vs. Clinton, 117 P. 1075; 39 established that the act of the clerk Utah 462; Wilson vs. Spencer, 135 was maliciously and wilfully done. N. W. 546; 91 Neb. 169. See also Huebner vs. Nims, 132 ^''Dodd vs. The State, 18 Ind. 56. Mich. 657; 64 Mich. 180. 266 THE LAW OF SUEETYSHIP. The question as to whether the public or the officer is the owner of the fund is in some cases determined by the 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 require 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 making 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 be turned in to the public treasury avoids the inconsistency of permitting 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 s^Post Sec. 167. OFFICIAX, BONDS. 267 statute directs the mode of keeping the funds or not^ and that, the oflBcer mmat accotmt for interest earned by public money.'* 84 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 officer, 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. Eenfroe vs. Colquitt, 74 Ga. 618. The doctrine that a. trustee is accountable for interest earned by the trust fund is everywhere con- ceded. Barney vs. Saunders, 16 How. 535, drier, 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 tha cestui que trust." 268 THE LAW OF StJBETYSHIP. It is held, however, in a number of carefully considered cased:. that in the absence of a statute charging the officer 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"" 80 State vs. Walsen, 17 Col. 170; 28 Pac. 1119. The constitution of Colorado pro- vides that "the making of profit, directly or indirectly, out of Stat^ 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.'' The 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 so earned with public funds; held — Hayt, G. 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 hi& sureties for all public moneys received by him as treasur- er, is fixed by the state constitution. In this respect the obligation of the treasurer, is different from that of an ordinary trustee. Such a, trus- tee is only hield to the exercise of reasonable care with reference to the property. If the trust funds are stolen or otlierwise 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 provided 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 mad* n. 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 BOOTJS. 269 §1C1. Sureties not liable for defaults of pziiuiipal in not per* forming his contracts with persons dealing with him in his of&cial 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 be 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 of business during his term of office, and at the expiration of his term, to pay it to his successor. He was not a, bailee of the moneys received, but an accountant, bound to pay over an amount equal to the amount he had received, precisely as a col- lector of the taxes is a debtor and accountant, bound to pay to the treasurer the moneys which he re- ceives." Brown vs. State, 78 Ind. 239; Bocard vs. State, 79 Ind. 270; Wil- son vs. Wichita Co., 67 Tex. 647; 4 S. W. 67. 8« Hodgson vs. Dexter, 1 Cranch (C. C.) 109; Parks vs. Ross, 11 How. 362, Oner, J. : " Now, it is an established rule of law, that an agent who contracts in the name of his principal is not liable to a suit on such contract; much less a public officer, acting for his government.. As regards him the rule is, that he is not responsible on any contract he may make in that capacity; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public charac- ter, unless the contrary appears by satisfactory evidence of an absolute and unqualified engagement to be personally liable." See also People vs. Stephens, 71 N. Y. 527, Allen, J. (560) : " When power is necessarily devolved upon a public officer to perform acts for the State, and third persons deal with such officer relying upon his author- ity and the validity of his acts, there is no reason or principle why the doctrine qui facit per aUum fadt per se should not apply to the ex- tent of binding the State for con- tracts and payments made by the officer in the discharge of the duties 270 THE LAW OE SUEETYSHIP. default in the perfoiimaiice of this contract is a breach by Ifce people and not the oflBcer, although the latter is the instrumental- ity whereby the breach is brought about The law does not make it the duty of the public officer to see to it that the State keeps faith with those with whom it contracts, although it im- poses upon him the duty of making the contract Where a County officer contracts with a publisher for printing official notices and fails to pay, the default is that of the County and not the officer, and the sureties of the latter are not liable.*' Even though the costs have been paid into the officer's hands, his sureties are not liable for a failure to disburse in accordance with the contract °* The sureties would be liable for failure to make the con- tract with the publisher in the first instance^ as such duty is specially enjoined upon the officer, but he has no official respon- sibility to perform the contract. §162. Sureties upon official bonds are not released by the neg- ligence or misconduct of other officials. The State or Municipality in accepting a bond for the good conduct of an officer, makes no contract express or implied in reference to the conduct of other officials. The provisions of the law for the auditing of official accounts make it the duty of those appointed to that service to inspect and settle such accounts, but this is primarily in the interest of the public, and although incidentally it operates for the protec- tion of the sureties, yet the law does not guarantee that such duty will be performed, and the parties to an official bond must of his office, and within tht limits the apprehension of a criminal, »1- of his authority, and to the same though the oflfer was made in their extent that a principal would be official capacity, bound by the acts of an agent under si Brown vs. Phipps, 14 Hiss. 51 ; the same circumstances." Commonwealth vs. Swope, 45 Pa. But see Brown vs. Bradlee, 158 535. Mass. 28, where it is held that the »« Allen vs. Ramey, 4 Strob. Law selectmen of a town were person- (S. Ca.) 30. ally liable for a reward offered for OFFICIAL BONDS. 211 assume the risk that such inspection may not be properly and thoroughly made, or may he omitted altogether.*' So also -where the statute made it the duty of the treasurer to cause a warrant to be issued against a collector who was in de- fault, and the treasurer neglected to issue such warrant until after the collector had absconded, it was held that such negli- ' gence does not release the sureties of the collector, although it was shown that if the warrant had been issued within the time prescribed by law, the amount of the shortage might have been collected from the principal. "" §163. Sureties not liable for failure to account for money received by the principal outside the scope of his office. The doctrine of strict construction in favor of a promisor in suretyship has been often applied in claims upon official bonds 8» Supervisors vs. Otis, 62 N. Y. 88, Allen, J.: " There was no condi- tion, expressed or implied, in the law or in the bond affecting the lia- bility of the appellants as the sure- ties for Baker, the county treasurer, that the board of supervisors should periodically examine the accounts of the treasurer, or watch over his transactions. " The sureties are not discharged from their obligation by reason of any neglect or omission of duty by the board of supervisors, or any un- faithfulness or even malfeasance on their part in their dealing with the principal . in the bond. The condi- tion of the bond is that the treas- urer shall pay, according to law, all moneys that shall come into his hands as such county treasurer, and shall render a full and true account thereof, etc. If this condition has been broken the bond is forfeited, and the sureties are held, notwith- standing the board of supervisors or other agents of the coimty may have been wanting in the perform- ance of some duty imposed upon them, or have been negligent and careless in the performance of such duty The law, while it imposes upon the supervisors the duty of examining the accounts of county treasurers, does not guaran- tee to the sureties the performance of that duty, or make the omission or negligent performance of it avail- able to the sureties as a release from their obligation, or a, defense to an action upon the bond of their sure- tyship." Hart vs. United States, 95 U. S. 316; Farmington vs. Stanley, 60 Me. 472; Campbell vs. People, 154 IlL 595; 39 N. E. 578. 00 Looney vs. Hughes, 26 N. T. 514. Where a public officer has the power, and is charged with the duty of removing from office subordinates who are in default, and fails to discharge a known delinquent, it is held that the sureties of the delin- quent are not released for subse- quent defalcations. Stern vs. Peo- ple, 102 111. 540. 272 - THE LAW OF SUEETYSHIP. wHere the default complained of was an act outside of the scope of the duty of the officer. The bond by its terms secures the due performance of the duties enjoined by law upon the officer, and generally specifies no other duties. The failure by an officer to do any acts which the law does not require him to do, or a voluntary doing of unauthorized acts in an improper manner, can not create a liability against the sureties of the bond, 6xcept upon the theory that persons in, an official position ought to be charged with the consequence of all acts done under color of their office, and that the terms of the bond should be extended by implication to cover all misconduct which purports to be official. There would be a genuine equity in a statute which would require an officer to give a bond, so conditioned as to secure the public against any act done officially, whether authorized by law or not, but in the absence of such statute the common law furnishes no rule for extending a surety's liability by impli- cation. It was held where a collector of taxes gave bond conditioned for the faithful discharge of his duties as " collector for the village " and who collected all taxes assessed upon the property in the village, including the State, County and Township taxes, that the collection of taxes for other than village purposes was outside of the scope of his official duties as " collector for the village," and that the sureties were not liable for a failure by the collector to pay over that part of the tax levied upon the village property for State, County and Township uses. The Court said : " The liability of a surety is limited to the express terms of the contract, and his obligation should be construed strictly and favorably to the surety so far as warranted by the terms employed The defendants' contract was therefore for the collection of village taxes, and not for the taxes of such portions of the towns as constituted parts of the village, and to extend it beyond this, would be enlarging its plain import." " «i Ward vs. Stahl, 81 N. Y. 406. OFFICIAL BONDS. 273 So also where a clerk of the court received money paid into court, which the statute does not authorize or require him to re- ceive, and receipts for it as clerk, the act not being within the scope of his official duty, his sureties are not liable for his con- version of the funds.*'' The same principle has been applied, but upon doubtful rea- "soning, where a debtor against whom judgment has been ren- dered, voluntarily pays the judgment to the sheriff, in anticipa- tion of an execution, but without any writ being in fact issued, it was held that the receipt of the money by the sheriff was not within the scope of his duty, and his sureties were not charge- able."' The embezzlement of school funds collected by the County .Auditor — there being no authority conferred upon the Auditor to make such collections — was considered not to create a lia- bility against his sureties."* The lack of authority must, however, be jurisdictional in order to be within the rule under discussion. It is Avithin the duty of the officer to act. upon the terms of the law, even though the law be unconstitutional, or the authority conferred is invalid for any other reason. Where the rate of taxation is in excess of that authorized by law, a treasurer in collecting such taxes is nevertheless acting within the scope of his duty, and his sureties will be liable for his failure to account for such excess taxes."" Even though the officer acts in pursuance of a direct aur W'tJarey vs. State, 34 Ind. 105 ; sureties to recover back the amoimfi Bowers vs. Fleming, $7 Ind. 541; first paid, and it was held that the Hardin vs. Carrioo, 3 Met. (Ky.) sureties were not liable. 289; Wilson vs. State, 67 Kan. 44; S4 state vs. Bonner, 72 Mo. 387. 72 Pac. 517; State vs. Porter, C9 See also State vs. Griffith, 74 Neb. 203; 95 N. W. 769; Clark vs. 6. 80; 77 N. E. 6»6. Logan County, 128 S. W. 1079; 9» Feigert ts. State, 31 0. S. 432; 138 Ky. 676. Morris vs. State, 47 Tex. 583; '3 Mills vs. Allen, 7 Jones Law Chandler vs. State, 1 Lea (Tenn.) (N. 0.) 564. In this case the debit- 296; Bullwinkle vs. Guttenberg, 17 or having paid the amount of the Wis. 583. judgment to the Sheriff, without Suthoi-land vs. Carr. 85 N. Y. 105, any writ being issued, was after- Folger, C. J.: "There was doubt- wards required to pay the amount less in this ease more money raised again upon a writ r^ularly issued, out of the town than was actually And this action was brought by the needed for the purposes of the town, debtor against the Sheriff and his It was raised in pursuance of law! 274 THE LAW OF SUEBTYSHIP. tkority from his superior officer, yet if the duty thus imposed is not within the scope of his regular official duty, his defaults are not covered by his bond.'* Where an officer borrows, money in his official capacity with- out authority, and afterwards fails to account for it, his sureties are iidt liable.'^ The law either prescribes exactly the duties of an officer, or delegates' the authority to regulate such duty to a person ap- pointed or elected for that purpose. The opportunity for cov- ering all emergencies affecting public rights is broad enough to avoid any necessity for creating suretyship obligations by im- plication, and there is great uniformity in the precedents fixing the rule in this respect.®' |164 Liability upon bond of sheriff or constable for trespass and other wrongs committed colore officii. If an officer pretends to have an official right to do an act, but in fact has no such right, and yet acts upon such pretence, It belonged to the town. It was not to be liable, since the transportation required by any law to be paid else- of the money was not a part of his where Being money be- duty as collector. longing to the town and raised un- 97 Leigh vs. Taylor, 7 Barn. & Or. der a law that looked to the vesting 491. of it in the hands of the supervisor as People vs. Cobb, 10 Col. App. of the town, it was properly paid 478; State vs. Moore, 56 Neb. 82; to. him. He was accountable for it. 76 N. W. 474 ; Dewey vs. Kava* Tie law was in effect before his naugh, 45 Neb. 233; 63 N. W. 396; bond was given. His bond is for Waters vs. Melson, 112 N. C. 89; that money. He and his sureties 16 S. E. 918i; U. S. vs. Morgan, must therefore replace that which 28 Fed. Rep. 4S>; People vs. Hiltoii, he has not paid over to his sucees- 36 Fed. Rep. 172; Heidenheimer vs. sors or other officers of the town." Brent, 59 Tex. 533 ; San Luis 90 United States vs. Adams, 24 Obispo Co. vs. Famum, 109 Cal. Fed. Rep. 348. 567; 41 Pac. 447; Orton vs. Lincoln, In this case a collector of customs 156 111. 499; 41 N. E. 160; Lowe vs. was directed by the Assistant Sec- City of Guthrie, 4 Okl. 287; 44 Pac. retary of the Treasury to convey a 198; Webb vs. Anspach, 3i 0. S. large quantity of gold to San Fran- 522; Cheboygan vs. Erratt, 110 Cisco. In complying with this order Mich. 156; 67 N. W. 1117. he lost some of the gold by theft, and the Court held his sureties not OFFICIAL BONDS. 275 his conduct is termed colore officii." And if, under color of his office, he commits. a wrong, and violates the right of another, he is personally liable, and by the preponderance of authority his sureties are liable also. Thus where an officer levies execution or attachment upon the property of a stranger to the writ, his sureties will be liable.^"* This view is based upon the argument that bonds of sheriff* and others, charged with the duty of serving judicial process, 99 " Colore officii " is used as a officii. If an officer, under the color description ot an act of a, public officer done with wrongful intent; as a technical expression, it implies bad faith and breach of duty. Chamberlain vs. Seller, 18 N. Y. 115. It has been said that the term " is always taken in malam partem, and signifies an act badly done, un- der the countenance of an office, and it bears a dissembling visage of duty and is properly called extor- tion." A more modified use of the term has grown up, and it has come also to be applied to those acts of public officers which are in fact un- lawful, but which the officer in good faith supposed to be lawful, such as acting upon a void writ, which he supposed was valid, or committing a trespass by levying execution upon property of a stranger to the writ, which he supposed belonged to the debtor. 100 Ohio vs. Jennings, 4 0. S. 419. Thurman, G. J.: "The authori- ties seem to us quite conclusive, that a seizure of the goods of A under color of process against B is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere in- dividual, but is perpetrated colore of a fi. fa. seize property of the debtor that is exempt from execu- tion, no one, I imagine,, would deny that he had thereby broken the con- dition of his bond. Why should the law be different if, under color of the same process, he takes the goods of a third person? If the exemp- tion of the goods from the execu- tion in the one case, makes their seizure official misconduct, why should it not have the like effect in the other? True, it may be some- times more difficult to ascertain the ownership of goods, than to know whether a particular piece of prop- erty is exempt from execution; but this is not always the case, and if it were, it would not justify us in restricting to litigants, the indem- nity afforded by the official bond, thus leaving the rest of the com- rnunity with no other indemnity against official misconduct than the responsibility the official might fur- nish." People vs. Schuyler, 4 N. Y. 173, Gardiner, J. : " His sureties under- took ' that he should faithfully ex- ecute' the process. If he had 'in all things ' performed his duty, he would have seized goods of ' F ' or returned the writ, instead of which he levied upon the goods of 'B,' as the property of the defendant in at- tachment. "Upon principle, and upon the 276 THE LAW OF SUEETYSHIP. would be of no value, if in every case where action is brought on such bonds, it must be shown that the act complained of is legal and lawful, and that the statement of these facts as a condition of recovery would in general defeat recovery. Also that, where the officer by reason of his official position does acts which he could not do as a private person, which, however, he had no authority to do as an officer, he violates his duty as an official and his sureties must respond in damages. grounds of public policy, it seems to me that the responsibility of his sureties should be different from those they would incur, if the sheriff had entered upon the premises of the relator, and removed his goods without any process whatever. " In the last case supposed, the sheriff would act in his own right, and might be resisted as any other wrongdoer. In the one before us, he was put in motion by legal author- ity, invoked on behalf of others, and could command the power of the county to aid him in its execution. "Kespeet for the process of our courts, and for the official character of the sheriff, if it did not forbid forcible opposition (which must have been unavailing), is incompat- ible with the notion of making re- sistance indispensable as a means of protection. This must be the alter- native, if those who are thus ag- grieved are driven to rely exclusive- ly upon the responsibility of the officer, who, as in this case, may be wholly insolvent." Pratt, J. (dissenting) : "The au- thorities recognize » principle or rule by which the acts of the sheriff, for which his sureties may be held liable, can be distinguished from those ants for which they will not be held liable. The former are termed acts done virtute officii, and the lat- ter colore officii. The distinction is this: Acts done vvrtute officii are where they arc within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him; whilst. acts done colore offioii are where they are of such a nature, that his office gives him no authority to do them. This distinction is as old as the common law, and has been acted upon and recognized in numerous cases. . . . . It is insisted that the duty rested upon the sheriff in this case to seize the property of the defend- ant in execution or to return the writ. But the difficulty in this ar- gument is that the sheriff was not made liable for not seizing the goods of Fay, but for seizing the goods of the relator. The relator has no right of action against the sheriff or anybody else for this neglect. The plaintiff in attachment is the only man who has any intei-est in that matter But it is insisted that public policy requires that the sureties should be made liable; that the rights of third per- sons would be otherwise unsafe, be- cause they could not successfully resist the sheriff, he having the pow- er of the county at his command. . . . . But I cannot appreciate the supposed difficulty. It is quite clear that if the sheriff should at- tempt to seize the property of the OFFICIAL BONDS. 277 The same rule is held to apply where the oflficer levies upon and sells property exempt from execution."^ If an officer in making an arrest uses unnecessary force and violence/"* or in order to prevent the escape of a prisoner wrong man, the latter would have the right to resist force with force, and having the right with him there can be no reason why he should not be successful. The claimant would thereby have the advantage, as he could protect those who might as- sist him, whereas those who might assist the sheriff would be trespass- ers." See also Gumming vs. Brown, 43 N. Y. 514; Lammon vs. Feusier, 111 U. S. 17; 4 S. Ct. 286; State vs. Fitzpatrick, 64 Mo. 185; Greenfield vs. Wilson, 13 Gray 384; Turner vs. Sisson, 137 Mass. 191. "The object of the bond is to make the sureties responsible for the due performance of his official acts in the service of process, and in his other duties. By official act is not meant a lawful act of the officer in the service of process; if so, the sureties would never be responsible; it means any act done by the officer in his official capacity, under color and by virtue of his office." Comm. vs. Stockton, 5 T. B. Mon. (Ky.) 192; Charles vs. Haskins, 11 la. 329; Turner vs. Killian, 12 Neb. 580; 12 N. W. 101; Thomas vs. Markmann, 43 Neb. 823; 62 N. W. 206; Holliman vs. Carroll, 27 Tex. 23; Van Pelt vs. Littler, 14 Cal. 194. 101 Casper vs. People, 6 111. App. 28; Hursey vs. Marty, 61 Minn. 430; 63 N. W. 1090; State vs. Far- mer, 21 Mo. 160; Strunk vs. Oehle- tree, 11 la. 158; Hobbs vs. Barefoot, 104 N. C. 224; 10 S. E. 170. 102 Drolesbaugh vs. Hill, 64 0. S. 257; 60 N. E. 202. In this case a marshal arrested the plaintiff with- out any warrant or process of Court, and dragged him along the street, assaulted him, and put him in pris- on, and the contention of the sure- ties was, that it was not official misconduct, but merely an assault and battery, for which the officer was liable only in his individual ca- pacity, but the sureties were held liable. Minshall, G. J. : " It would seem that the public have as much inter- est, if not more, in the duty of an officer not to colorably exercise the powers with which he is clothed, as not to use unnecessary violence, where he is otherwise clearly within the duties of his office. It is by virtue of the office he holds that he may exercise its duties to the in- jury of another. It is not probable that any individual, not an officer, would have attempted to do what the marshal is charged with doing." Eiley vs. Walker, 42 W. L. B. 275 (Ohio) ; affirmed 60 O. S. 626; 54 N. E. 1108. Risher vs. Meehan, H O. C. C. 403, Lauhie, J. : " The real question in all such cases is, was the partic- ular act complained of unlawful, and done while engaged in, and in connection with, the performance of an official duty? Not merely, was such act illegal, or forbidden by law? If it was done in the attempt to perform an official duty, then it was official misconduct, and we know of no principle of law which should intervene to protect the sure- 278 THE LAW -OB- SUEETYSHIP. charged with misdemeanor unlawfully shoots him, his sureties are liable.^"^ Again where an officer while serving a writ of replevin made an unlawful entry into a house and committed acts of violeilce, whereby persons in the house were seriously injured, it was held to create a liability against the sureties upon the bond of the officer.^"* If the officer is acting upon a void writ, or falsely represents he has a writ, when in fact he has jione, and takes property which is turned out to him in reliance upon his representations, he is a mere trespasser, and no recov- ery can be had upon his bond.^°' ties upon the bond; and public pol- icy requires that they should be held responsible. .... The bond is re- quired, and is given, tor the express purpose of securing the public against illegal, unwarranted and un- lawful acts of the officer while in the discharge of official duty It is, therefore, entirely immaterial to consider whether the act in ques- tion would come within the defini- tion of an aot done colore officii, or an aot done under performance of a duty virtute officii; whether it was a malfeasance or misfeasance, inten- tional or unintentional. All that is quite immaterial, if we find that the officer at the time engaged in the performance of an official duty, and he improperly performed it, or un- lawfully performed it to the injury of another." To the same efi^ect see Clancy vs. Kenworthy, 74 la. 740; 35 N. W. 427. "If, in exercising tlie func- tions of his office, defendiant is not liable for acts because they are il- legal or forbidden by law, and for that reason are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or wrongs. For lawful acts in the dis- charge of his duty, he of course is not liable. It follows that, if de- fendant's position be sound, no ac- tion can be maintained on the bond in any case." Cash vs. People, 32 111. App. 250; Huffman vs. Koppelkom, 8 Neb. 344; Hall vs. Tierney, 89 Minn. 407; 95 N". W. 219; Lee vs. Charmley, 120 N. W. 448; 20 N. D. 570; Mc- Olenny vs. Inverarity, 80 ICan. 569; 103 Pac. 82. But see Forest County vs. United Surety Co., 149 Wis. 323; 136 N. W. 335; Jones vs. Lucas Co. Com- missioners, 57 0. S. 189; 48 N. E. 882. 103 Brawn vs. Weaver, 76 Miss. 7; 23 South. 388. See also Stephenson vs. Sinclair, 14 Tex. Civ. App. 133 ; 36 S. W. 137. In this case the officer fired on the escaping prisoner and killea the horse on which the prisoner was mounted, and it was held that al- though the shooting was unlawful, the sureties on the bond of the offi- cer were liable in dam'ages for the value of the horse. i»« State vs. Beclcner, 132 Ind. 371; 31 N. E. 950. 105 Turner vs. Collier, 4 Heisk. (Tenn.) 89; MeLendon vs. State, 92 Tenn. 520; 22 S.W. 200; Cornell vs. People, 37 111. App. 490; Gerber vs. Ackley, 32 Wis. 233; State vs. Mc- Donough, 9 Mo. App. 63. Governor vs. Pearce, 31 Ala. 465. But the rule in Alabama is now modified by Statute, and the sureties of an officer are liable for damages resulting from the service of a void process. (Ala» Eev. Code, See. 3087). OFFICIAL BONDS. 279 §165. View that sureties are not liable for wrongs of sheriff or constable committed colore officii. The doetrine is announced in some cases that where an officer does that which he has no power to do, as when he acts outside the scope of his authority, he is a mere trespasser and his acts cannot properly be termed official misconduct, but rather un- official or individual misconduct. That a writ of execution or attachment gives him authority to levy upon the property of the debtor named in the writ, but it gives him no color of authority to seize the property of a stran- ger to the writ It is urged that the Bond is to protect the parties in interest against damages resulting from a failure to obey the commands of the writ, and from the consequences of levying upon the de- fendant's property in an improper manner or the doing of some irregular or unlawful thing in connection with the seizure of the defendant's property, but that it does not cover, either by its terms, or by necessary implication, any acts of the officer which are not official, in the sense that he is authorized to do them, either by law or the special coxnmands recited in a judicial process, and that there is no more reason for holding the sure- ties liable for damages resulting from a levy upon the property of a person not named in the writ, an act which is wholly un- authorized, than there would be for holding them liable for loss resulting from a burglary committed by the officer. A leading case of this class states the view that " official acts are those which are done by virtue of the office; such as, if properly done, exculpate both the officer and his sureties from responsibility, but which, if neglected or improperly done, render both liable. If the authority is exceeded, or the duty omitted, an action may be maintained against the officer in his Albright vs. Mills, 86 Ala,. 324; For authorities maintaining the 5 South. 591. view that sureties upon an official See also Barnes vs. Whitaker, 45 bond are not liable for acts done Wis. 204. colore officii, see Post Sec 182. Contra — Tieman vs. Haw, 49 la. 312. 280 THE LAW OF SUEETYSHIP. official capacity, and his sureties held responsible for it. Un- official acts are such as are committed under color of the office, such as can not be lawfully done, and can not be justified by the official character of the sheriff, or by any process in his hands." "" §166. liability for loss of public money by failuie of the bank used as public depository. The decided weight of authority in this Country both in State and Federal Courts is that officials having the custody of a public fund are liable for its loss even though the loss occurs without their fault or negligence. ^ The most extreme application of this rule is where the officer acting in good faith, and exercising care in selection of a de- pository, places the fund in a solvent bank which thereafter fails. The discussion as to whether the officer and his sureties mtis't respond to the loss thus occasioned has taken a wide range, 108 State vs. Conover, 28 N. J. L. 224; dhandler vs. Rutherford, 101 Fed. 774; Inman vs. Sihernill, 116 Pac. 426; 29 Okl. 100; State vs. Mankin, 70 S. E. 764; 68 W. Va. 772. See also Stockwell vs. Eobimson, 9 Houst (Del.) 313; 32 Atl 528; State vs. Brown, 54 Md. 318. "Tlie condition of the bond is, 'That he shall well and faithfully emeoute the office of constable.' By this cwntraet, the sureties guaran- tee the public against official delin- quency on the part of the officer. For any breach of official duty his bond is responsible; this is the ex- tent of liability assumed by the sureties. If he commits a wrong, not in the discharge of his official duty, he is personally liable, but his sureties cannot be held respon- sible therefor; it is not within the terms of their contract." State vs. Brown, 11 Ired. (N. C.) 141. It was held in People vs. Lucas. 93 N. Y. 5815, that the wrongful seizure and sale by the constable of the property of A on an execution against B is a mere trespass al- though under color of process, and does not constitute a breach of the condition of a bond which recites that he will pay to the person en- titled thereto "all such sums of money as the constable may become liable to pay on account of any exe- cution." This case rests upon the special and limited language of the bond, and the earlier rule in this State as stated in People vs. Schuy- ler, 4 N. Y. 173, is not disturbed, wherein it was held, the sureties upon a bond conditioned that the l>rinoipal should faithfully perform his duty are not liable for axrta done colore officii. Stee Ante Sec. 181 for authorities supporting the view that the sure- ties upon an official bond are liable for all acts done under color of office whether authorized or not. OFFICIAL BOaDS. 281 sometiines turning on the special form of the Bond, again on the wording of the statute, and often altogether on the princi- ples of puhlio policy. A forcible argument against the doctrine of absolute liability is made in many cases, and in favor of the limited responsi- bility of a bailee or trustee where the officer acts in good faith and without negligence. The rule of common law does not hold a trustee liable for loss of trust funds except upon proof of neglect or miscon- duct,"" and it is urged that no public necessity exists for hold- ing an officer to a more stringent liability in the absence of statutory requirement, and that the official Bond is not intended to add anything to the liability of the officer, but merely to fur- nish a security for the due performance of the obligation im- posed at conimon law Upon a trustee, which is always satisfied when ihe conduct of the trustee is fair, diligent and cautious, and tbat public safety requires that the large accumulation of money incident to official duty should be deposited in a bank, and that a failure to so deposit would be gross negligence,^"^ and that ihe people and not the officer should assume the risk of such future insolvency of the depository as could not with due diligence be foreseen. In this connection it has been said : " We believe the true rule is that a public officer who receives money by virtue of ^07 Such is the rule as to b'xecutors negligence, and are not allowed the and administrators. Noivpood vs. exercise of a reasonable discretion Harness, 98 Ind. 134; t^tute vs. and prudential care in the manage- her, 44 Mo. 356; Moue vs. ment of their trusts, it will deter Eure, 101 N. C. 11; 7 S. h. 471; prudent men from assuming the of- Lehman vs. Robertson, 84 Ala. 489; fioe, which in itself is sufficiently 4 South. 728; Newton vs. BuEihong, onerous and already undertaken by 22 Gratt. 628. such men with reluctance." The same rule applies as to re- See also Law's Estate, 144 Pa. ceivers. Barton vs. Eidgeway, 92 499; 22 Atl. 831; O'Connor vs. Va. 163; 23 S. E. 226; Powers vs. Decker, 95 Wis. 202; 70 N. W. 286. Loughridge, 38 N. J. Eq. 396. losin some instances trustees In Fahnestoek's Appeal, 104 Pa. have been held liable for the loss of 46, it was said, adopting and quot- trust funds on the grounds that ing from Eyster's Appeal, 4 Hams they were negligent in failing to de- 372: "If guardians and trustees posit the funds in bank. Fostw vs. are to be held responsible for all Davis, 46 Mo. 268. 282 THE LAW OF SURETYSHIP. his office is a bailee, and that the extent of his obligation is that imposed by law ; that when imaffected by constitutional or leg- islative provisions his duty and liability are measured by the law of bailment. If a more stringent obligation is desired it must be prescribed by statute. That his official Bond does not extend such obligation, but its office is to secure the faithful and prompt performance of his legal duties." ^"^ In spite, however, of the apparent justice of these holdings, and the seeming hardship of the opposing view, the doctrine which has met with the most general acceptance is that the loss of public money by a bank failure will not constitute an ex- oneration of the official bond, even though no suitable and safe place of deposit was provided by law, and the officer was not negligent in selecting the bank.^^° this bond is not to fix or define the limit of his liability, but to super- add to his personal responsibility the security of his bondsmen, and the liability of both prinioipal and sureties under the bond is flxeld by the laws relating thereto." "0 Tillinghast vs. Merrill, 151 N. Y. 135; 45 N. E. 375; Fairchild vs. Hodges, 14 Wash. 117; 44 Pae. 125; State vs. Moore, 74 Mo. 413; Omro Siupervisors vs. Kaine, 39 Wiis. 468; Havens vs. Lathene, 7'5 N. C. 505'; Inglis vs. State, 61 Ind. 212; Eose vs. Douglass Tp., 52 Kan. 451; 34 Pac. 1046; Griffin vs. Levee Comrs. 71 Miss. 767; 15 Stouth. 107; Nason vs. Poor Directors, 126 Pia. 445; 17 Atl. 616; State vs. Hill, 47 Ifeb. 456; 66 N. W. 541; Lowry vs. Polk CJounty, 51 Iowa 50; 49 N. W. 1049; Perley vs. Muskegon Co., 32 Mich. 132; Board of Education vs. Jewell, 41 Minn. 427; 46 N. W. 9U; Wilson vs. Wichita Co., 67 Tex. 647; 4 S. W. 67; State vs. Nevin, 19 Nev. 162; 7 Pac. 650; Estate of Eamsay vs. People, 107 IlL 572; 64 N. E. 540 ; Mecklenburg County vs. Beales, 111 Va. 691; 69 S. E. 1032; 36 L. E. A. (N. S.) 285. Where the statute makes it the 109 Wilson vs. People, 19 Oolo. 199; 34 Pac. 944. In thlis case the Court, commenting on the facts, said: "From the agreed facts it appears that the money was lost through no fault of the clerk. He deposited tihe money in a bank of reputed solvency, as clerk of the court, and in doing so, atited as pru- dent men ordinarily do with their own funds." See also State vs. Copelsund, 96 Tenn. 296; 34 S. W. 427, Wilkes, J.. "If a public officer is held to be an insurer against loss when he exer- cises the utmost diligence, caution and good f aiith, it will result that no man of any finajicial standing or business prudence would accept a public trust which involves the handling of public money. There would be! but little inducement to act honestly and in good faith, since neither would avail against an un- foreseen and unavoidable casualty. .... The measure of t',^ trustee's liability is fixed by the laws relat- ing to his office, and not merely by the terms of the bond, anid there is no unconditional obligation to pay Tinder any and every contingency. The primary object and purpose of OFFICIAL BONDS. 283 The doctrine of absolute liability does not depend upon the hypothesis that the officer is a debtor, and the owner of the fund, but rather that he is a special bailee, and that public policy requires the officer to assume the risks incident to the custody of large sums of money, and that any other rule must inevitably lead to the perpetration of great fraud, by making it possible for combinations between officials and depositaries resulting in unlawful conversions for which there could be no civil redress. The measure of duty imposed by this public policy, and by the necessity for full protection, is greater than need be applied in a mere trust or ordinary bailment for hire. The view has been expressed in at least one reported case that the liability upon the sureties is to be determined wholly from the language of the Bond, and the statute prescribing the duties of the officer, and not upon any construction founded upon public policy, and that if the statute requires the officer to " receive and keep all moneys " and the Bond provides that the officer will " justly account for all moneys coming into his hands " that the law will not extend the strict and literal mean- ing of this language, and that the undoubted meaning of the words, " justly account," is an accounting according to law, and if the law requires him to " keep " the funds, but does not in terms require the officer to keep them " safely," that a court has no right to impose an absolute responsibility upon the Bond by implying the word " safely." ^^^ duty of the officer to deposit the funds. That word " safely " which public funds in a bank, it is held has cut so important a figure in the that the officer is not liable upon majority of the cases is absent from his bond for loss resulting from the our statute. Does the requirement insolvency of the bank, if he uses that he shall receive and keep, mean, due care in selecting the depository. intrinsically, as used in the section. City of Livingston vs. Woods, 20 the same as " keep safely " ? . . . . Mont. 91; 49 Pae. 437. The Court has no sort of authority w State vs. Gramm, 7 Wyo. 329; to make a contract between the 52 Pac. 533, Potter, Ch. J.: " It is State and these defendants. The con- observable that the statute does not tract, whatever it is, has already expressly state that the treasurer been made. The Court has no right shall keep " safely " the public to impose upon the defendants any 284 THE LAW OF SUEETYSHIP, §167. Liability for loss of public money by theft or robbery. An early authoritative case defining the liability upon an oflBcial Bond where the public funds were feloniously stolen, higher degree of responsibility than the legislature has done, and by their bond they have assumed. If by the intrinsic purport of the stat- ute, the duty is not imposed upon the treasurer to keep safely the pub- lic funds, without exception, it "Would exceed the judicial prerogative to force such duty upon him. The duty of the Court is merely to con- strue and interpret the statutes, and not to make them. .... The con- viction is forced upon us that the duty imposed upon the treasurer by statute and all reasonable impli- catibns therefrom was that he should have the custody of the money of the State and should ex- ercise a diligent and prudent care ■over the money, but in a high de- gree, and should also bring to the performance of such duty strict fidelity and faithfulness. And it therefore follows that by the bond neither the treasurer nor his sure- ties undertook any greater respon- sibility for the reason that they con- tracted that the treasurer should justly and truly account for the public moiieya, which accounting we hold means according to law." Com, J., (dissenting): "Some stress is laid upon the circumstance that while some statutes, under which the treasurer has been held to strict liability, provide that he shall 'safely keep,' the word safely is omitted from ours, and it is argued that the latter indicates requirement of a smaller degree of responsibility. .... In Iowa township treasurers are required by the statute to give bond ' conditioned for the faithful performance of their duties.' The same act makes it the duty of the treasurer to hold all moneys belong- ing to the district." Commenting upon the case of Dis- trict of Taylor vs. Morton, 37 Iowa 553, construing the Iowa statute the dissenting opinion continues — " The Court did not recognize the nice dis- tinction relied upon in the majority opinion in this case, that to ' hold safely' might be construed as a, contract to hold without loss, while the obligation to 'hold' is to ba 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 cases 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. 2S5 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 agteountability. Not only that he should exercise the highest d^ee 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.*** the office of township treasurer McN. cock vs. Hazzard, 12 Cush. 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; hound to make good any deficiency State vs. Lanier, 31 La. Ann. 423. which might occur in the funds n* State vs. Houston, 78 Ala. which come under his charge, wheth- 576 ; Cumberland vs. Pennell, 69 Me. er they were lost in the bank or 357; Healdsburg vs. Mulligan, 113 otherwise." Cal. 205 ; 45 Pac. 337. "2 United, States vs. Preseott, 3 There has been much comment by How. 578. the courts and legal writers upon lis United States vs. Morgan, 11 the case of United States vs. Thom- How. 154; United States vs. Da- as, 15 Wall. 337, and the conclusion shiel, 4 Wall. 182 ; Boyden vs. Unit- generally reached is that in this ed States, 13 Wall. 17; United case the Federal Supreme Court States vs. Jones, 36 Fed. Eep. 759; abandons the extreme view taken State vs. Harper, 6 0. S. 608; Hal- in United States vs. Preseott, uhi bert 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 Conun. vs. Comly, 3 Pa. 372; -Han- Nashville. The bond was in the 286 THB LAW OF SUEETYSHIP. 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 be de- usual form and conditioned for the faithful discharge of the duties of the ofiSce. 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 It 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 vn none of them was the defense of overruling necessity in- terposed. They were all cases of alleged theft, or robbery, or soiae 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 tha* 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 bond should be construed to extend the obligation of the de- OFFICIAL BONDS. 287 dnced from all the more recent cases as the prevailing rule both in the State and Federal Court. Such causes are considered as excluding all possibility of 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 though loss results from an act of a public enemy or an act of God.^'^ §168. Liability against judicial officers acting without jurisdic- tion. A judicial officer acts without 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 bejond 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- i^» State vs. Clark, 73 N. C. 255. tion. Nor do I believe that prior to See also Thompson vs. Board, 30 these decisions there was any princi- III. 99. 288 THE LAW OF SUKETTSHIP. ful invasion of the rights of another constitutes a judicial ofiScer a legal trespasser. Tims where a Justice of ttte Peace without authority of law issues a warrant of arrest, he is liahle t6 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 oflScer 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- clusions of many more cases than we have cited, has brought us iieTruesdell vs. Combs, 33 O. S. ii» Sheldon vs. Hill, 33 Mich. 171. 186; Miller vs. Grice, 2 Rich. Law See also Patzack 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- iisBigelow vs. Stearns, 19 Johns. ferred jurisdiction to commit, and 39. be was held liable in damages. OFFICIAL BONDS. 289 to the conclusion 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 mote than in exoesB 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 been 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.^" ^^KFolger, 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- tiona 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 portance to the proper administra- power, urged with so much eloquence tion of justice that a judicial o£Bcer, 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 count of judicial action, and of the be inconsistent with the possession Interest that the public has therein. of this freedom, and would destroy These are not antagonistic princi- the independence without which no pies; they are simply countervail- judiciary can be either respectable ing. As with all other rules which or useful Nor can this ex- act in the affairs of men, prepon- emption of the judges be affected by derance may not be fondly given to the motives with which their judi- one to the disregard of the other; cial acts are performed. The purity 290 THE liAW OF BT7EETYSHIP. Although the Court is in fact wholly without jurisdiction to hear a cause, if the Judge in good faith determines that he has jurisdiction, upon the question being presented to him as a plea in bar, his action is judicial and he can not be held in damages for the consequences. While the Court does not acquire jurisdiction by merely de- ciding that he has it, yet he has the power to pass on all the questions which are presented to him in the case while it is pending, and his decision, although erroneous, that he has juris- diction to proceed, is a judicial act which may be the subject of review. of their motives can not in this way be the subject of judicial inquiry. .... A distinction must be here observed between excess of jurisdic- tion and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdic- tion over the subject-matter any au- thority exercised is a usurped au- thority, and for the exercise of such authority, when the want of juris- diction is known to the judge, no execuse is permissible." See also Ackerley vs. Parkinson, 3 Maule and Selwyn 411. Doepfner vs. The State, 36 Ind. 111. In this case the justice, acting in excess of his authority, directed a constable to be committed to jail for contempt. It was held that the sureties upon his bond were not liable. But see Piper vs. Pearson, 2 Gray 120. Even though the acts in excess of jurisdiction are shown to have been malicious or corrupt, the .judge is not liable. Bradley vs. Fisher (ubi supra). In Fray vs. Blackburn, 3 Best k Sm. 576, one of the judges of the court was sued for a judicial act, and the plaintiff asked leave to amend by introducing an allegation of malice. In refusing the leave the Court said: "It is a principle of our law that no action will lie against a judge of one of the su- perior courts for a judicial act, though it is alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply inter- ested in this rule, which, indeed, ex- ists for their benefit, and was estab- lished in order to secure the inde- pendence of the judges and prevent their being harassed by vexatious actions." 122 Austin vs. Vrooman, 128 N. Y. 229; 28 N. E. 477. In this case the lack of jurisdiction was as to the power of a magistrate to try the defendant upon a criminal charge and impose a penalty, he having jurisdiction of the subject-matter and of the person, but merely for the purpose of remanding. See also Woodward vs. Paine, 15 Johns. 492. Where the magistrate had no jurisdiction of the person or of the subject-matter, but erroneous- ly decided that he had jurisdiction to hear a cause, held, that the magis- trate was a trespasser, and that hie OFFICIAL BONDS. 291 A noticeable tendency appears in the reported cases to apply a more strict rule of liability to inferior courts of limited juris- diction than to the superior courts of more extensive jurisr diction. The substance of the reasoning in support of this ap- pears to be that a Court of limited jurisdiction should solve all questions of doubt against its power, and that such Court does not violate its duties in declining to exercise a questionable authority, but that where a general jurisdiction is conferred the presumption arises that it is to be exercised broadly and with greater liberty, and that it would be an evasion of duty for such Judge to decline to act merely because doubt was expressed as to his jurisdiction. The view whidi seems supported by stronger reasons is that the law should not protect one judicial officer and not another, and that there is no reason why a preference should be given the one who, from his higher position and superior learning, ought to be most free from error.^^' §169. Liability of judicial officers for ministerial acts. A ministerial duty is one in regard to which nothing is left to discretion and is a definite duty imposed by law.^''* Judicial decision as to his jurisdiction, al- ability for their errors, while the lat- though made in good faith, did not ter must be severely punished for protect him. Wingate vs. Waite, 6 honest errors of judgment? I can M. & W. 739. find no reason in such a distinc- But see Grove vs. Van Duyn, 44 tion." N. J. L. 6S4. Thompson vs. Jackson, 93 Iowa 123 Brooks vs. Mangan, 86 Mich. 376; 61 N. W. 1004; Calhoun vs. 576; 49 N. W. 633. "It is conceded Little, 106 Ga. 336; 32 S. E. 86. that circuit judges cannot be held 12* State of Miss. vs. Johnson, 4 : liable in a civil action for any judi- Wall. 498. cial determination, although such Flournoy vs. Jeffersonville, 17 determination results in depriving Ind. 169. "A ministerial act may, the citizen temporarily of his liber- perhaps, be defined to be one which ty. Circuit judges are usually men a person performs in a given state of experience and education in the of facts, in a prescribed manner, in law, while justices of the peace sel- obedience to the mandate of legal dom have any legal education or authority, without regard to or the training. Upon what reason should exercise of, his own judgment upon the former be held exempt from li- the propriety of the act being done." 292 THE LAW OF SUKETTSHIP. officers are often charged with the performance of ministerial duties. The act is none the less ministerial because the jiajjicial officer is first required to perform judicial functions in determining his duty, such as to satisfy himself that the facts exist upon which his ministerial duty rests, or the exercise of his dis- cretion respecting the means of performing it. Such officer may be charged with the duty of making ap- pointments in the public service; the act of passing upon the fitness of a person appointed is judicial, but the appointment is ministerial."" It has been held that the duty of granting a writ of Habeas Corpus is ministerial.^''* Where ministerial duties axe cast upon judicial officers, and such duty is violated, the officer is civilly responsible for the damages resulting from his misconduct. The issuing of an order of arrest by a Justice of the Peace, is considered a ministerial duty ; the Statute having made such act mandatory upon the filing of a proper affidavit, and the officer has been held liable on his bond for not issuing such writ in the manner provided by law, such as the failure to re- quire a proper undertaking before issuing the order.*" So also a failure by a Justice of the Peace to issue execution when required by law is a breach of ministerial duty.*^* 120 Crane vs. Camp, 12 Conn. 464. the justice; fie must proceed in a, i2« Nash vs. People, 36 N. Y. 607. specified manner. He acts in the 12T Place vs. Taylor, 22 O. S. 317, same capacity that he does in issu- Day, J.: "A justice of the peace ing an execution after judgment. acts in both a judicial and ministe- All these acts are such as, in the rial capacity. The manner of dis- Court of Common Pleas, are per- charging his judicial duties is left formed by the clerk of the court, to his own judgment; but, in gen- and are not dependent upon the ex- eral, the acts which he is required to ercise of judicial discretion; but are perform in a particular way, and such as a party may demand to as to which he has no discretion have done as of right. They are, about the manner of their perform- therefore, ministerial acts." ance, are of a ministerial character. 12s Gaylor vs. Hunt, 23 0. S. 255 ; In regard to the issuing of an order Fairchild vs. Keith, 29 0. S. 156. of arrest, everything to be done is Contra — ^Wertheimer vs. Howard, specifically defined by the statute. 30 Mo. 420. Nothing is left to the discretion of OFFICIAL BONDS. 293 A Probate Judge has been held liable for issuing a marriage license to a minor contrary to law.^^° A Judge acting within his jurisdiction can not be held liable for judicial errors, but he must obey the mandatory re- quirements of the law, and his failure to do so will create a liability upon his official bond/^° §170. Liability of principal for acts of his deputy. A sheriff must answer for the official misconduct of his deputy, and his bond is liable for the acts of the deputy the same as if the things complained of were done by the principal, even though no such express condition appears in the bond. The act is that of the principal, although performed by the deputy."^ The default of the deputy must relate, however, to acts which the law requires him to perform in his official capacity. A tort or fraud committed by the deputy, while in the act of performing his duty, the duty itself being regularly performed, will not bind the principal, but the irregular performance of a duty, such as a failure to pay over money by a Deputy Sheriff made on execution, will bind the Sheriff and his sureties. A misrepresentation by a deputy as to the title of property sold at public sale, is considered unofficial, and the principal is not responsible.^^^ The rule as to a Sheriff, Marshal, or Constable, whereby they are held for damages resulting from the irregularities of their deputies, is not extended to other classes of official sub- ordinates, who are themselves considered as public officers and liable directly to the party injured. 129 Wood vs. Farnell, 50 Ala. 546. i^i Crawford vs. Howard, 9 Ga. laoGrider vs. Tally, 77 Ala. 422; 314; Brayton vs. Town, 12 Iowa. Stone vs. City of Augusta, 46 Me. 346; Thomas vs. Kinkead, 55 Ark. 127; Stone vs. Graves, 8 Mo. 148; 503; 18 S. W. 854; Brown vs. Weav- Pike vs. Megoun, 44 Mo. 491; People er, 76 Miss. 7; 23 South. 388; Case vs. Bush, 40 Cal. 344; State vs. Car- vs. Hulsebush, 122 Ala. 212; 26 rick, 70 Md. 586; 17 Atl. 559; Mc- So. 155; Johnson vs. Williams, 111 Teer vs. Lebow, 85 Tenn. 121; 2 S. Ky. 289: 63 S. W. 759. W. 18; Wilson vs. Marsh, 34 Vt. isaLewark vs. Carter, 117 Ind. 352; Ferguson vs. Kianoull, 9 Clark 206; 20 N. E. 119. & Fin. 251. 294 THE LAW OP SUEETYSHIP. It is said that since the government is not itself responsible for the wrongs and misfeasance of public officers, 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 virong 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." ^'' I'lTl. 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 Notary's bond are liable, although the officer acts without any intent to violate the law or his duty.^'" §172. 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. Siehel, 127 U. S. liable on his bond for the defaults 507 ; 8 S. Ot. 1286. In this case the of his deputy, although the latter is deputy collector of customs by his mot appointed by the postmaster, negligence caused a loss to an owner and holds his office by appoinitmenifc of baggage arriving at the port of under the Civil Service rules of the New York, and the collector was government. Bryan vs. United sued for damages. It was held that States, 90 Fed. Eep. 473. he waa not liable. ^^* Doran vs. Butler, 74 Mich. See also Conwell vs. Voorhees, 13 643; 42 N. W. 273. O. 523 ; Scott Co. vs. Fluke, 34 Iowa iss Lescouzeve vs. Ducatel, 18 La. 317; Foster vs. Metts, 55 Miss. 77; Ann. 470; Curtiss vs. Colby, 39 Bowden vs. Derby, 97 Maine 536; Mich. 456; .Scotten vs. Fegan, 62 55 Atl. 417; Barker vs. C. P. & Sit. Iowa 236; 17 N. W. 491. L. Ey. Co., 243 111. 48i2; 90 N. iso Weintz vs. Kramer, 44 La. E. 1057. Ann. 35; 10 South. 416; Heidt vs. It is held that a postmaster is Minor, 89 Cal. 115; 2« Pac. 627. OFriCIAl BONDS. 295 where the Statute requires the bond to be filed by a certain date, or to be approved by a certain ofl&cer/^^ 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 be 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 jurisdic- tion."' 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. "8 state vs. Medary, 17 O. 565. 216; 3 S. Ct. 126; Baker vs. Shee 138 Sheldon vs. Van Buskirk, 2 N. han, 29 Minn. 235; 12 N. W. 704 Y. 473. Cogburn vs. Spence, 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 by 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 KT. J. L. 1 ful levy. 11 Atl. 346. 296 THE LAW OF SUEETYSHIP. held that the officer is protected in the service, even though he knows that the issuing of the writ was irregular.^*" "WJiere 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.^** 1" People vs. Warren, 5 Hill (N. Y. 297; Hover vs. Barkhoof, 44 N. Y.) 440. Y. 113; Bennett vs. Whitney, 94 N. Contra— GTa.ce vs. Mitchell, 31 Y. 302. Wis. 533; Leachman vs. Dougherty, i**01ean vs. King, 116 N. Y. 355; 81 111. 324. 22 N. E. 559. The defense made by 1*1 Chase vs. Ingalls, 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 112 Smith vs. Jones, 76 Ma. 138 ; accounting for the funds which the Gassier vs. Fales, 139 Mass. 461 ; 1 officer had no right to receive. Held N. B. 922. — " While a tax collector may de- 1*3 Garlinghouse vs. Jacobs, 29 N. cline to proceed in the collection ol OFFICIAL BONDS. 297 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/ . 1«B %nZ. Presumption that official duty has been performed. It would seem to be indispensable to the orderly adminia^ 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 faith, 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 had been before him, the Court 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 cer for its disobedience. Clark vs. tax, he can not then question the Miller, 54 N. Y. 528. right of the proper authority to re- "sAute Sec. 169, 170, 171. ceive it, but must pay it over." For a discussion of the effect upon Brunswick vs. Snow, 73 Me. 177 ; the liability of the sureties upon an State vs. Harney, 57 Miss. 863; official bond, where the legislature Webb Co. vs. Gonzales, 69 Tex. 455 ; 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- ments, see Ante Sec. 87. pin, 132 Mass. 470; Feigert vs. i*8 Taylor vs. Alexander, 6 O. State, 31 O. S. 432. 144; Webster vs. Washington Co., The officer is not relieved from 26 Minn. 220; 2 N. W. 697; Seaver performing his duty because he held vs. Pierce, 42 Vt. 325. an honest belief that the Statute 298 THE LAW OF SXTEETYSHIP. no official person, acting imder oath of office, will do aught which it is against his official duty to do, or will omit to do aught which his official duty requires should be done," ^*' But the courts will not use 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 tmdertaken. In accordance with this principle it was held that where school trustees omitted to give notice of an assessment of tax- able 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/*' §174. iivideiice 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. 'No 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- i<8 Jewell vs. Van Steenburgh, 58 pose of strengthening the infii-mity of N. Y. 85; City of Albany vs. McNa- evidence, and upholding transactions mara, 117 N. Y. 168; 22 N. E. 931, OFFICIAL BOUDS. 299 has violated his oath of office, to furnish by direct declaration, ^e 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 a 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/" mit the money to be then in his hands to the amount claimed, should 1*9 Hatch vs. Elkins, 65 N. Y. be conclusive upon the sureties. We 489; Stetson vs. Bank, 2 0. S. 167; do not think so. The accounts ren- Lewis vs. Lee Co., 73 Ala. 148. dered to the department of money 150 Blair vs. Perpetual Insurance received, properly authenticated, are Co., 10 Mo. 559; Society vs. Fitz- evidence, in the first instance, of Williams, 84 Mo. 406; Casky vs. the indebtedness of the officer Haviland, 13 Ala. 314; Parker vs. against the sureties; but subject to State, 8 Blackf; (Ind.) 292; Dobbs explanation and contradiction. They vs. The Justices, 17 Ga. 624; Mc- are responsible for all the public Kim vs. Blake, 139 Mass. 593; 2 N. moneys which were in his hands at E. 157; Paxton vs. State, 59 Neb. the date of the bond, or that may 460; 81 N. W. 383. have come into them afterwards, and isooPundmann vs. Schoenich, 144 j^^t properly accounted for; but not Mo. 149, 45 S. W. 1112. f^^ n,o„gys ^^i^jj ^^e officer may 1" Bissell vs. Saxton, 66 N. Y. 55. choose falsely to admit in his hands. United States vs. Boyd, 5 How. jn hig account with the government' 29i NeUon, J.: "It has been contend- xhe sureties cannot be concluded by ed, that the returns of the receiver to the treasury department after the execution of the bond, which ad- 300 THE LAW OF S0EETYSHIP. Admissions of the ofi&cer after the terminatioii 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.^"^ §175. Same subject — Tudgment 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 somewhat plausible argument that an official bond is different in its terms from a bond of indemnity against a failure to perform a spe- a, fabricated account of their princi- pal with his creditors; they may al- ways inquire into the reality and truth of the transactions existing between them." State vs. Ehoades, 6 Nov. 352 Mann vs. Yazoo City, 31 Miss. 574 Supervisors vs. Bristol, 99 N. Y, 316; 1 N. E. 878; Hatch vs. Attle borough, 97 Mass. 533; Lowry vs State, 64 Ind. 421; McShane vs, Howard Bank, 73 Md. 135; 20 Atl, 776. Contra — Morley vs. Metamora, 78 111. 394; Chicago vs. Gage, 95 111. 693; Longan vs. Taylor, 130 111. 412; 22 N. E. 745. But see Schureman vs. People, 55 111. App. 629. Where the books kept by a treasurer in a banking house of which he was sole proprietor were cpnsidered not conclusive upon tlie sureties. Sooy vs. State, 41 N. J. L. 394; Boone Co. vs. Jones, 54 Iowa 699; 2 N. W. 987; 7 N. W. 155. See also Bagot vs. State, 33 Ind. 262. Where it was held that the sheriff's return showing the collec- tion of money on execution was con- clusive against the sureties in an action against them for a failure of the officer to pay over the money. 152 Evans vs. State Bank, 13 Ala. 787 ; Comm. vs. Brassfield, 7 B. Mon. (Ky.) 447: City of St. Louis vs. Foster, 24 Mo. 141 ; Jenness vs. City of Black Hawk, 2 Colo. 578; Lacoste vs. Bexar Co., 28 Tex. 420. losMagner vs. Knowles, 67 111. 325; Montgomery vs. Dillingham, 11 Miss. 647; Amherst Bank vs. Boot, 2 Met. 522; Parker vs. State, 8 Blackf. (Ind.) 292. But see Root vs. Caldwell, 54 Iowa 432; 6 N. W. 695. OFFICIAL BONDS. 301 dific act, such as a bond that a principal will pajSj-ficertain 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 principal was, and then justify it with further proof concerning the duty of the principal, placing upon the defendant a burden which should rest upon the plaintiff.^"* 1S4A leading case supporting this view is, Pico vs. Webster, 14 Cal. 203, in which the Court says : " There can be no doubt, that where s 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 con- clusive 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 ease 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 case of official bonds, the sureties undertake, in general terms, that the principal will perform his official duties. They do not agree to be absolutely boimd 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 stipulate that they would abide by the judgment against the principal, or permit him to 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. right 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 responsible for any judgment 302 THE LAW OP SUEETTSHIP. It is also urged that a judgment against the principal sboilld either be deemed of no effect against the surety, or else be taken 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/"' §176. 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, hntil 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, which might be ren- 317 ; People vs. Zingraf, 43 111. App. dered 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." ^^^ Lucas vs. The Governor, 6 Ala. Bailey vs. Butterfield, 14 Me. 112; 826. People vs. Russell, 25 Hun 524 ; Mc- i5« Governor vs. Montfort, 23 N. Dowell vs. Burwell, 4 Rand. (Va.) C. 136. OFFICIAL BONDS. 303 fo interpose any defense they may have, and to be fully heard on the merits." "' §177. 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 1ST Beaucbaine vs. McKinnon, 55 Minn. 318; 56 N. W. 1065. See also Moses vs. United States, 166 U. S. 571; 17 S. Ct. 682; Norris rs. 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 Greiff vs. Wilson, 30 N. J. Eq. 435 ; Connor vs. Corson, 13 S. D. 550; 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 suffer damages by reason of the neglect, fraud or mis- conduct of the officer. The bond is made with the full knowledge and imderstanding 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 than the sureties, who are not supposed 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 decision 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 such 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 prima facie evidence against the sureties in Fay vs. Edmiston, 25 Kan. 439; See also Fire Association of Phil- adelphia vs. Ruby, 49 Neb. 584; 68 N. W. 939; Ba,rker v. Wiheeler, 60 Neb. 470; 83 N. W. 678. 304 THE LAW OF STJEETYSHIP. against the principal was conclusive against the surety, and. this was placed upon the ground that it ought in any event to be conclusive against the principal, and that of necessity it must also be binding against the surety in a joint action, for otherwise the whole controversy must be opened up even against the 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 some 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 a 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 108 Tracy vs. Goodwin, 5 Allen settles conclusively against his sure- 409. "If no part of the judgment ties, as well as himseM, not only the has been paid, the amount of it is right of the plaintiff to recover the amount due from him on the against him, but the amount of the bond. And the sureties have so damages. . If the bond had been made their bond that a joint judg- several as well as joint, there would ment must be rendered in this suit have been less embarrassment in against all the defendants. If they treating the evidence as prima, facie, were permitted to open the matter, and permitting the sureties to offer and show that the plaintiff ought rebutting evidence." not to have recovered his judgment. See also Dennie vs. Smith, 129 in whole or in part, their defense Mass. 143 ; Treasurer of the City of must enure to the benefit of the Boston vs. Schapero, 217 Mass. 71. principal as well as to theirs. We i69 Masser vs. Strickland, 17 Serg. think it more in conformity with the & R. 354; Evans vs. Oomm., 8 Watts true intent and spirit of their obli- (Pa.) 398; MoMicken vs. Conmu, gation to hold that it is a guaran- 58 Pa. 214; Cony vs. Barrows, 4& 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 lesaStevens vs. Carrolli 131 Iowa, collusion, the judgment against him 170; 105 N. W. 653. OFFICIAL BONDS. 305 limited in his recovery to the amount of the judgment against the principal.^'"' Where the judgment is first 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^®' • §178. 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 ease 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 thei statutory limitations. Thus where a sheriff converted money of the plaintiff for his own 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 years being the statutory limitation, ISO United States vs. AUsbury, 4 against the sureties eould not ex- Wall. 186. In this ease a paymaster cced that which had been ascer- waa siied 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. Maclay, 14 Iowa £81. sureties it was held that the liability 102 Ante See. 159. 306 THE LAW OF SUEETTSHIP. and the action could thereafter be brought at any time before 1875."" issKeithler vs. Foster, 22 O. S. of limitation la approved in Thrall 27. vs. Mead, 40 Vt. 540. The presumption of demand at the Codman vs. Rogers, 10 Pick. 112, expiration ' of the statutory period CHAPTER VII. JUDICIAL BONDS. Sec. 179. Suretyship in the Application of Legal Bemedies. Sec. 180. Bonds for Stay of Execution or Appeal. Sec. 181. Statutory Requirements as to Appeal or Stay Bonds. Sec. 182. Irregularities or Defects whereby Bonds are Invalidated. Sec. 183. Inmmterial Defects in the CJontraet. Sec. 184. Failure to Perfect the Appeal. Sec. 185. Conditions upon which Appeal or Stay Bonds become Fayaible. Sec. 186. Same Subject — Affirmance by failure to Prosecute Appeal. 'Sec. 187. As to when Action may be brought upon Bond for Appeal. Sec. 188. Measure of Damages in an Action upon an Appeal or Stay Bond. Sec. 189. 'Successive Appeal Bonds. Sec. 190. Defenses in Actions upon. Appeal Bonds — ^Estoppel. Sec 191. Appeal from a Justice Court. Sec. 192. Bonds to Procure Injunction. Sec. 193. When Action for Damages ujkmi an Injunction Bond Accrues. Sec. 194. Construction of Bonds to Procure Injunction. Sec. 195. Defenses of Sureties upon Injunction Bonds. Sec. 196. Measure of Damages for Breach of Injunction Bond. Sec. 197. Same Subject — ^Defendant's Expenses in Procuring a Dissolu- tion of Injunction. Sec. 198. Attachment Bonds. Sec. 199. Attachment Bonds not SVjrfeited for Irregularities of Execution or Defects in Form. Sec. 200. Whether Damages for Malicious Prosecution ar« Recoverable upon Bond to Procure Attachment. [Sec. 201. Forthcoming or Redelivery Bonds. Sec. 202. Bonds to Discharge Attachment. See. 203. When Action Accrues upon Bonds in Attachment. Sec. 204. Good Faith of the Plaintiff, or Probable Cause for Attachment not a Defense in Actions upon Bonds. Sec. 205. Sureties Estopped from Questioning the Regularity of the Pitv ceedings out of which their Liability Arises. Sec. 206. Exoneration of Sureties in Attachment Proceedings. Sec. 207. Attachment Bonds are Available in any Court to which th« Case is taken on Appeal. Sec. 208. Measure of Damages in Actions upon Attachment Bonda. Sec. 209. Replevin Bonds. Sec. 210. Conditions of Bonds in Replevin. Sec. 211. Bonds in Replevin which are Void. Sec. 212. What Constitutes a Breach of a Replevin Bond. 307 308 THE lAW OP SURETYSHIP. See. 213. Sureties upon Reple>vin Bonds are Concluded by the Final Order in the Beplevin Action. Sec. 214. Measure of Damages in Action upon Replevin Sonde. Sec. 215. Defenses in Action on Replevin Bonds. Sec. 216. Bonds given in the Course of the Administration of Estates of Deceased Persons. -Sec. 217. Duties for which Executors and Administrators are Chargeable on their Bonds. See. 218. The Scope of the Administration Bond Covers all Assets and Equities of the Estate. Sec. 219. Successive Administration Bonds are Cumulative. Sec. 220. As to whether Judgment or Order of Court against the Prin- cipal is Necessary to a Cause of Action on the Administration Bond. Sec. 221. The Sureties upon the Bond of an Administration are Concluded by Judgment against the Principal. 'Sec. 222. Defenses to Action upon Administration Bonds. Sec. 223. Who may Maintain Action on Administration Bonds. Sec. 224. Bonds of Guardians — ^Scope of Liability. iSec. 225. Settlement of Guardian's Accounts — ^Release of Sureties on the Bond. Sec. 226. An Adjudication Against the Guardian is Conclusive agadnst the Sureties. Sec. 227. Bonds given in the Course of Insolvency Proceedings. See. 228. Bail Bonds. Sec. 229. Conditions in Bail Bonds — Time of Appearance. Sec. 230. 'Same Subject — Place of Appearance. Sec. 231. Defenses against Bail Bonds. iSee. 232. Discharge or Exoneration of Bail. §179. 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 maintenance 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 JtlDICIAL BONDS. 309 other party against the loss whicli may result to him as a nee* 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 bond to secure the payment of the damages that may arise in case the order or judgment of the 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 time to time as the necessity has developed. The liberal extension of the right to invoke legal remedies has 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 the 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 Ee- 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 310 THE LAW OF SUKETYSUIP. cases before the writ should operate as a supersedeas.^ Later the statute extended the provision to all cases.^ The Federal Judiciary Act of 1789 provides that a party prosecuting error and an appeal shall give good and sufficient 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., c. 2; 16 and 17 Car. II., c. 8. 3 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 sufiScient security that the plaintiflp in error 'shall prosecute his writ to effect, and answer all damages and cosus if he fails to make his plea good.' A writ of error lodged in the clerk's ofBce within ten days after the rendition of judgment, operates as a, supersedeas of execu- tion ; and the question arises, wheth- er, in cases where it operates as a supersedeas, the security taken by the judge or justice ought to b« 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." Kountze vs. Omaha Hotel Co., ICZ U. S. 378. 5 The statute in Ohio proivides that no proceedings to reverse, va- cate, or modify a judgment or an order rendered in. an inferior court. JTJDICIAX BONDS. 311 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^tatute, 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. O., See. 6718. Or if the proceeding is an appeal whereby the case is retried on new evidence 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; Wilkins 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." 312 THE LAW OF SUEETYSHIP. York in 1830, which provided that where no special provision was made by law as to security, the Vice-Chanoellor, 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 suiBcient, 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. §180. Sends 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 the law, it is confined to the facts adduced in the kwer court.* The term " appeal bond " in some courts of general jurisdic- tion is accordingly used interchangeably with supersedeas. In some courts of limited jurisdiction, such as a magistrate's court, an appeal bond generally vacates the judgment, and provides a new trial in the Appellate Court* 7 1 Hoff. Ch. Fr. SO. appeal and supersedeas bonds are Cayuga Bridge Co. vs. Magee, 2 not interchangeable terms. Mason : Paige 116-22. vs. Alexander, 44 0. S. 328; 7 N. E. «Sharoli vs. Hill, 26 Fed. Eep. 435. 337. ' 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 cral 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 is ■ lower court. Under this practice, governed usually by strict statu- JUDICIAL BONDS. 313 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, 35 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 revipwable. Baker vs. Bel- vin, 122 N. C. 190,- 30 S. E. 337. The same effect is given appeal in Connecticut. White vs. Howd, 66 Conn. 264. While in Nebraska the higher court re-examines on appeal the whole case, 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. loMcCreary 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. 314 THE liAW OP SURErsrSHIP. §181. Statutory requirements 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 officer are imperative, and the appeal may be dis- missed for a non-compliance with such Statute," although the act of the ofScer in refusing to approve the bond may be reviewed.^* 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 which means substantially the same as the words employed in the Statute will be a sufficient compliance with the Statute." 11 Mueller vs. Kelley, 8 Col. App. 527; 47 Pac. 72; Klllian vs. Clark, 111 U. S. 784; 4 S. Ot. 686; Worm, ley vs. Wormley, 96 111. 129 ; Lengle V8. Smith, 48 Mo. 27'6; Canfield vs. city of Erie, 21 Mich. 160; Smith- wick vs. Kelly, 79 Tex. 564; 15 S. W. 486; Pace vs. Ficfclin, 76 Va. 292; Holcomb vs. Sawyer, 51 Cal. 417. 12 Perkins vs. Shadbolt, 44 Wis. 574. In this ease the bond was not approved by the Court until a day after the expiration of the statutory limit, and it was considered a sub- stantial compliance with the law. In North . Carolina the Statute gives 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 Ingrajn vs. Greenwade, 12 Ky. Ii. Eep. 942; Keen vs. Whittington, 40 Md. 489; Gross vs. Bouton, 9 Daly (N. Y.) 26; Fogel vs. Dus- sa:ult, 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 gureties, where the bond is acted upon, the provision ot approval be- ing considered as for the benefit of the obligee, and his failure to object is deemed a waiver. Irwin vs. Orook, 17 Col. 16; 28 Pac. 549; Eyndak vs. Seawell, 102 Pac. 125; 23 Okl. 759. 1* Marsh vs. Cohen, 68 N. C. 283; Earle vs. Earle, 49 N. Y. Super. Ot. 57. 15 Swan vs. Hill, 155 U. S. 394; 15 S. Ct. 158. In Missouri the Statute requires the bond in appeal to recite a con- dition binding the obligor to comply with the decision of "any Appellate Court," and it was held insufficient to state in the bond that the appel- lant would comply with the decision of "The St. Louis /Court of Ap- peals." American Brewing Co. vs. Talbot, 125 Mo. 388; 28 S. W. 585. See also Drinkwine vs. City ot Eau Olaire, 83 Wis. 428; 53 N. W. 673. 18 Riley vs. Mitchell, 38 Minn. 9; 35 N. W. 472. The bond in this case recited that the appellant would prosecute her appeal "with due dili- gence to a final determination," and it was held to be a compliance with the statutory condition to "prose- cute his appeal with eflFect." See also Anderson vs. Meeker Co. Com'rs, 46 Minn. 237; 48 N. W. JUDICIAL BONDS. 315 Where an appeal bond is not in the express terms of the Statute, it may be valid as a common law obligation volun- tarily entered into by the parties.^"" 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 fail- ure to comply with the 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 defense to the sureties.^' But where the sureties to an undertaking, given to stay pro- ceedings on appeal, are excepted to, and they fail or refuse to justify, and justification is not waived by the respondent, the sureties are discharged from liability ; the effect of the failure to justify is, by Statute, "the same as if the undertaking had not been given. "^*" It is held that an appeal will not be dismissed because of a failure of the sureties to justify where it is shown that the 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.^^ 1022; Gay vs. Parpart, 101 U. S. i? Harshaw vs. McDowell, 89 N. 391; Oarmichael vs. Holloway, 9 C. 181; Peneinse ve. Burton, 9 Ore- Ind. 519; Robinson vs. Brinson, 20 gon 178. Tex. 438; Kasson vs. Broeker, 47 is Hill vs. Burke, 62 N. Y. 111. Wis. 79 ; IN. W. 418. See also Murdock vs. Brooks, 3'8 i«» First State Bank v. Stevens Cal. 596; Moffat vs. Greenwalt, 90 Land Co., 119 Minn. 209; 137 N. W. Cal. 368; 27 Pac. 29«; EyndaJc vs. 1101; Pray v. Wasdell, 146 Mass. Seawell, 102 Pac. 125; 23 Ore. 759; 324; 16 N. E. 266; Meserve v. Nichols & Shepard Oo. vs. Horsted Clark, 115 111. 580; 4 N. E. 770; 130 N. W. 776, 27 S. D. 262. Decker v. Decker, 63 So. 24; 9 Ala. iso Manning vs. Gould, 90 N. Y. App. 241. 476; Eiddle vs. MacFadden, 112 It has been held that the consid- N. Y. S. 498. eration of sueh common law under- i^ St. Louis, L. & D. Ey. Co. vs. taking is the perfection of the ap- Wilder, 17 Kan. 239. peal and therefore failure to do so "O Beaird vs. Euss, 32 La. Ann. Tenders the bond unenforceable. 304; Scott vs. Milton, 26 Fla. 52- SPace Grocery Co. vs. SSavage, 114 7 South. 32. ' ' S. W. 866. 21 Anderson vs. Rhea, 7 Ala. 104 316 THE LAW OF SUEETYSHIP. The requirement of a Statute for a bond in appeal to be executed in double the amount of the decree and costs, 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, 1 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 O. 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 u bond, that, 'There is no case where a bond fairly and regularly executed, and comprising substan- tially all the requisites 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 courts, 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 Bore vs. Covey, 13 Cal. 502; Murdock vs. Brooks, 38 Cal. 596; Van Deusen vs. Hayward, 17 Wend. 67. JUDICIAL BONDS. 317 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 jtiji 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."* §182. Irreg^arities 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 24 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. OFarrington Mfg. Co., 701. 69 Wis. 213; 34 N. W. 89. \;7 0gden vs. Davies, 116 Cal. 32; 25 MeKellar vs. Peck, 39 Tex. 381 ; 47 Pac. 772. Ullery vs. Kokott, 61 Pac. Rep. 28 Cochran vs. Wood, 29 N. C. ISO; Ij Col. App. 138; 61 Pac. 189. 215; Allen vs. Kellam, 94 Pa. 253; =0 Johnson vs. Noonan, 16 Wis. B. & 0. Ry. Co. vs. Vanderwarker, 687 ; Coughran vs. SundbKck, 13 S. 19 W. Va. 265. 318 THE LAW OF SUEETYSHIP, 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 ia held that the undertaking is invalidated; sudi 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 will be void for want of consideration where there is 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 suffi- cient consideration, but the absence of such authority in the lav* 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.** 2» Waller vs. Pittman, 1 N. C. Co. vs. Weber, 4 N. D. 135; 50 N. 324. W. 529. so Block vs. Blum, 33 IlL App. 34Hessey vs. Heitkamp, 9 Mo. 043. App. 36. siButtlar vs. Davis, 92 Tex. 74; Contra — Tanquary vs. Bashor, 94 U. S. vs. Morris' Heirs, 153 Fed. Pac. 22; 42 Col. 231. 240. But see Co-operative Assn. vs. But see Schmumcker vs. Steide- Rohl, 32 Kan. 663; 5 Pac. 1. Hold- mann, 8 Mo. App. 302. ing that the sureties upon a judicial 32Powers vs. Cliabot, 93 Oal. 266; bond are estopped from denying 28 Pac. 1070; Olsen vs. W. H. Birch jurisdiction. To the same effect see & Co., 1 Cal. App. 99; SI Pac. 656. Stephens vs. Miller, 3 Ky. L. Eep. 33 Ashley vs. Brasil, 1 Ark. 144; 523. Steele vs. Orider, 61 Fed. Rep. 484; If the trial is had on appeal the Brounty vs. Daniels, 23 Neb. 162; validity of the judgment appealed 36 N. W. 463; Travellers Insurance JUDICIAL BONDS. 319 It has been held that the exaction of a bond in appeal which' contains conditions more onerous than the law requires, rea- 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 imauthorized 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 vires, the doctrine of estoppel does not apply, and the want of contractual capacity is considered a defense."* §183. 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 appealed from.*" Where the from cannot be raised, if the Appel- N. Y. 371; Byrne vs. Riddell, 4 La. late Court has jurisdiction. Butler Ann. 3. vs. Wadley, 15 Ind. 502; Knight vs. 37 Tucker vs. State, 11 Md. 322. Waters, 18 Iowa 345. Where the case is transferred ai- 35 NeTTComb vs. Worster, 7 Allen tar appeal to another county by rear 198; 'Comm. vis. Wiatar, 142 Pa,. son of the fact that the judge in the 373; 27 Atl. 871; Dennison vs. Ma- county virhere the judgment was son, 36 Me. 431. But see Kountze rendered was formerly a counsel in vs. Omaha Hotel Co., 107 U. S. 378. the case, the change of venue will Bradley, J.: "We think the rule not release the sureties, although followed in some of the States is a the court affirming the judgment is sound one, that if the condition of not the one named in the condition an appeal bond, or bond in error of the bond, since the law on the substantially confonns to the requi- subject of the change of venue ia sitions of the statute, it is sufficient considered as being written into the to sustain it, though it contain va- bond. Barela vs. Tootle, €6 Pac. nations of language; and that if Rep. (Colo.) 899. further conditions be added, the ss Anselm, vs. Groby, 68 Mo. App. bond is not therefore invalid, so far 421. as it is supported by the statute, 39 Best Brewing Co. vs. Klassen, but only as to the superadded conr 185 111. 37; 57 N. E. 20. ditions." *<> Handv vs. Burrton Land Co. seHalsey vs. Flint, 15 Abb. Pr. 50 Kan. 395; 53 Pac. 67; Pray vs. (If. Y.) 367; Post vs. Doremue, 60 Wadsell, 146 Mass. 3'24; 16 N" E 266. 320 THE .LAW OF SURETYSHIP. appellant's name is omitted from the bond, it is held competent to identify the parties by averment in the pleadings." The omission of the name dt the Appellate Gourt," 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 timely objection." The obligee can not stand upon the bond and at the same time object to its informalities. If Tie 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 violation 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." §184. Failure to perfect the appeal. If a party fails to perfect his appeal, the bond is liable. Such default is within the express condition of the undertaking, 41 Wile vs. Koch, 54 0. S. 608 ; 1032. See also Eyndak vs. Seaweil, 44 N. E. 236. In this case a further 102 P&c. 125; 23 Okl. 759. defect in the bond was urged, in i* Jones \s. Droneberger, 23 Ind. that the bond did not recite the 74 ; Allen vs. Kellam, 94 Pa. 253. amount of the penalty, the place fcjr *<> Columbia, etc., E, E. Co. vs. the insertion of such penalty being Braillard, 12 Wash. 22; 40 Pac. 382. left blank; The bond, however, con- "We think that by refusing to ae- tained the stipulation "that the ap- oept the bond as sufficient, and by pellants if the judgment be ad- taking proceedings to have it de- judged against them on appeal, will termined ineffectual for the pur- satisfy such judgment and the poses of an appeal, the respondent costs." And it is held that the obli- is .not entitled to judgment against gation thus expressly assumed was the sureties. Here the appeal is not defeated by failure to insert a, dismissed because the sureties upon definite amount in the undertaking. the bond are found insufficient, and Simmons v. Sharpe, 56 So. 849; 2 we think it inconsistent that re- Ala. App. 385. spondeni should be permitted to *2 Stillings vs. Porter, 22 Kan. 17. treat it as an effectual obligation *3 Eailaback vs. Greve, 58 Ind. after it has secured an adjudication 72 ; Davis vs. O'Bryant, 23 Ind. App. that is not such." 3,76 ; 55 N. 15. 261 ; Hentig vs. Col- *» State vs. Sixth Judicial Dist. lins, 1 Kan. App. 173; 41 Paic 1057; Ot., 22 Mont. 449; 57 Pac. 89, 145; Gleeaon's Est., 192 Pa. 279; 43 Atl. Hemmingway vs. Pouoher, 98 N. Y. 281. JUDICIAL BOHDS. 351 -wlii»tk 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.*« Recitals 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 affirmance 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." °'' « 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 so Bulkley vs. Stephens, 29 0. S. How. Pr. (N. Y.) 283. 620. *s Carroll vs. McGee, 25 N. 0. 13. See also In re Kennedy, 129 Cal. *» Thalheimer vs. Crow, 13 Col. 384 ; 62 Pae. 64 ; Cresswell vs. Herr, 397; 22 Pac. 779; Mix vs. People, 9 Col. App. 185; 48 Pac, 155; Rod- 86 111. 329; Meserve vs. Clark, 115 man vs. Moody, 14 Ky. L. Rep. 202- 322 THE LAW OF SUKETYSHIP. §185. Conditions upon whicli 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 such 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 dociket 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." ^^ Neither 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 shovsTi 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.°° Flannagan vs. Cleveland, 44 Neb. 125 Ind. 332; 25 N. E. 349. To the 58 ■ 62 N. W. 297. effect that a presumption of the siParnell vs. Hancock, 48 Cal. filing of a certified copy of afiarm- 452; Jordan vs. Agawam Woollen ance arises after the trial in the Co., 106 Mass. 571. Appellate Court. "Heath vs. Hunter, 72 Me. 259. BsQ'Neil vs. Nelson, 22 111. App. But see Perkins vs. Klein, 62 111. 531. App. 585. Where it is held not to ii4Malone 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 eerti- 31 N. E. 153. fied copy of the affirmance. «■> McCallion vs. Hibemia Sav'g See also Buchanan vs. Milligan, Soc, 83 Cal. 571; 23 Pac. 798. JUDICIAL BONDS. 323 Yet where there is a distinct affirmance 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 will, under this form of bond, constitute a breaeh.^^ Also where the appeal was taken from an order sustaining an attachment and from a judgment upon the debt, and the judgment is af- firmed but the order of attachment reversed, it was 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.^" A bond to stay execution on a judgment pending a writ of error, the condition of which obligates the surety "to pay the said judgment and costs if the same is not reversed" and to "prosecute its writ of error to effect and pay and satisfy such judgment as shall be rendered against it thereon," obligates the surety to satisfy the final judgment rendered on the writ of error, and the obligation is not discharged by a reversal of the judgment which is followed by a rehearing and an affirm- 59 Harding vs. Kuessn«r, 172 111. sum of $200 and for a part of de- 125; 49 N. E. 1001; Holmes vs. fendant's land. The Eoviewing Court Steamer Bell Air, 5 La. Ann. 523. substituted a decree for $3,200 and 5T Hopkins vs. Orr, 124 U. S. 510; released the land, and it was held 8 S. Ct. 590. not to be sueh am afiirmance as But see Heinlen vs. Beans, 71 CaL would bind the sureties for the 295; 12 Pac. WI ; Feemster vs. An- $3,000 added by the Court to the derson, 6 T. B. Mon. (Ky.) 537. decree. Deatherage vs. Sheidley, 50 Mo. 59 Porter vs. Singleton, 28 Ark. App. 490. Holding that an appeal 483; Alber vs. Froelich, 3i9- O. S? from a decree upon a mechanic's 245 (overruling Lang vs. Pike, 27 lien wherein the decree was aflirmed 0. S. 498) ; McFarlane vs. Howell, in part and released in part did not 91 Tex. 218; 42 S. W. 853; Brown constitute a breach of the bond. vs. Conner, 32 N. C. 75 ; Vandyke vs. 58 Krone vs. Cooper, 43 Ark. 547. Weil, 18 Wis. 277; Lewis vs. Maul- See also Oakley vs. Van Noppen, den, 93 Ga. 758; 21 S. E. 147; Wood 100 N. C. 287; 5 S. E. 1. In this vs. Orford, 56 Gal. 157; Ives vs. case the condition of the appeal was Hulcs, 17 111. App. 35 ; Gilpin vs. "if, upon said appeal, the said rul- Hord, 85 Ky. 213; 3 S. W. 143; ing is affirmed, and said alleged lien Lutt vs. Sterrett, 26 Kas. 561 ; John- declared and held valid," the ruling son vs. Reed, 47 Neb. 322 ; 66 N". W. was affirmed, but the decree did not 405; Hood vs. Mathis, 21 Mo. 308; in terms hold the lien valid. This Revnolds vs. White, 118 N. Y. S. was considered ». substantial affirm- 977; Farmer's Loan & Trust Co. vs. ance, and to constitute a breach of Lord, 41 Okl. 569; 139 Pac. 278; the bond. SchuHz vs. United States Fidelity To the some effect see Foster vs. & Guaranty Co., 201 N Y 230- 94 Epps, 27 111. App. 235. N. E. 601. But see Rice vs. Rice, 13 Ind. 592. Cook vs. Ligon. 54 Miss. 625. In This was a judgment for divorce this case the judement below was with a decree for alimony in the against the defendant individually 324 THE IxiW OP SURETYSHIP. ance, since the opinion on rehearing is the final judgment."'" Where the party appeals to protect a special intere&t which does not concern his co-defendants, and the judgment generally as to the others is affirmed, but reversed as to the appellant, tl bond will not be held for the part of the decree which is 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."' §186. 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 waut of prosecution when the court has jurisdiction of tlie case, has always been treated as an affirmance of the decree or judgment v/ithin 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 and as executor. It was reversed as ^i Helt vs. Whittier, 31 O. S. 476. to the. individual liability and af- Contra — Haberer vs. Hansen, 148 firmed as to the representative ca<- 111. App. 83. pacity. Held a breach of the bond. 82 Long vs. Sullivan, 21 Olo. 109; See also Dignowitty vs. Staacke, 40 Pac. 359 ; Sutherland vs. Phelps, 25 S. W. (Tex. Civ. App.) 824. 22 111. 92; Coon vs. McCormack, 69 Where the appeal was from a judg- Iowa 538 ; 29 N. W. 455 ; Chase vs. ment against a principal and surety Beraud, 29 Cal. 138 ; Simonds vs. and there was also a judgment in Heinn, 22 La. Ann. 29i6; Common- the same action in favar of the weailth vs. Green, 138 Mass. 200; surety against the principal. The Flannagan vs. Cleveland, 44 Neb. judgment against the principal and 58; 62 N. W. 297; Teel vs. Tice, 14 surety was affirmed, but reversed as N. J. L. 444; Blair vs. Sanbomi to the judgment in favor of the 82 Tex. 686; 18 S. W. 159; Call- surety. This was considered suffl- breath vs. Coyne, 100 Pac. 428; 48 cient affirmance to hold the bond. Ool. 199. In Grieff vs. Kirk, 17 La. Ann. 25, "That the appeal was dimissed on it was lield that a judgment against appellant's own motion and without ' partners affirmed as to one partner prejudice" does not prevent a state did not constitute a breach of the of facts calling for a different con- bond, elusion. Koelling vs. Waehsning, B9o,0ulver vs. Fidelity & Deposit 174 111. App. 322. Co., 149 Mich. 630; 113 N. W. 9. Gontra^'K.ivnbaW Print'g Co. vs. «o Warner vs. Cameron, 64 Mioh. Southern Land Improvement Co., 185; 31 N. W. 42. 57 Minn. 37; 58 N. W. 868. JUDICIAL BONDS. 325 no jurisdiction to pronounce a judgment of affirmance, and it would be a non 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, the 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 a 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.** 63 Blair vs. Reading, 103 111. 375. altogether a different 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 6* Planter's Bank vs. Hudgins, 84 in a collateral undertaking. They 6a. 108; 10 S. E. 501. entered into a private contract and 65 Schuster vs. Weiss, 114 Mo. agreed to be bound on eeitain condi- 158; 21 S.W.4:3S,6antt,J.: "This lions. 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 Constitution im- te cannot be heard to complain. So pairing its obligations." here, while the legislature deprived See also Cranor vs. Reardon, 39 the suitor of a hearing in the Court Mo. App. 306 ; Trader vs. Sale, 18 ot Appeals, it at the same time se- O. C. C. 814. cured him a hearing in the court of «« Johnson vs. Flint, 34 Ala. 673 ; last resort in the State. But it is Osborn vs. Hendrickson, 6 Cal. 175. 326 THE LAW ^OF SUEETYSIIIP. This has 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 •7 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 affirm.ance 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 Bacrifice 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. Smybhe, 44 Iowa 410; Quillen vs. Quigley, 14 Nev. 215; First State Bank vs. ■Stevens Land Co., 119 Minn. 209; 137 N. W. 1101; Chase vs. Berand, 29 Cal. 138; Bailey vs. Kosenthal, 56 Mo. 385; Howell vs. Alma, 36 Neb. 80; 54 N. W. 126. Ammons vs. Whitehead, 31 Miss. 99, Handfy, J.. "The bonds were executed for the purpose of having the cases retried 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. Their condition was, substantially, that if the judgments should be there af- firmed, they would abide by and per- form the judgmeot of the Court to be rendered thereon. From their 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 would be un- successful, the law under which tlhey were given provided that the judg- ment should be rendered againsit 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 actfllateral proceeding of what was done in the proceeding, the necessary legoJ 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 iu the Circuit Court. The principal might have withdrawn all defense and submitted to judgments in the three cases immediately ujion their presentation in the Circuit Court; and upon the same reason was au- thorized to compromise the suits 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 JUDICIAL BONDS. 327 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 Vould be an advantage rather than 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.'" |187. 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 postponed by some 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 enf orcemait of that was entirely contingent and un- this State, that sureties in an appeal certain, except that the parties had, bond are parties to the suit, in the by the necessary legal effect of the sense that they must be consulted in act, submitted themselves to what- regard to any step taken in the case ever might be done in the detcrmina- before final judgment." tion of the suit, by their principal, '"> Texas Trunk Ey. vs. Jackson, under the sanction of the court." 85 Tex. 605 ; 22 S. W. 1030. 83 Succession of Simonds, 26 La. 7i Smith vs. Hughes, 24 111. 270; Ann. 3)9. First Nat. Bank vs. Rogers, 13 Minn. 89 Bailey vs. Rosenthal, 56 Mo. 407 ; Clerk vs. Withers, 2 Ld. Ravm. 385. "It has never been held in 1072. 328 THE LAW OF SURETYSHIP. 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 principal before proceeding against the bond.''' Where the bond was to secure an appeal from a special judg- ment for taxes, 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 necessary in order to show a non-satisfaction.''* It is not necessary to first make a demand upon the principal before proceeding against the surety upon an appeal bond.'" I\[either 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 separate action need not be instituted, but the Appellate Court enters judgments against the sureties at the time the judgment is affirmed against the appellant.''' This is founded on the proposition that such sureties, by the act of signing the bond, become voluntary parties to the suit and subject themselves thereby to the decree of the Court.'"" It is held that a judg- '2 Mayo vs. Williams, 17 O. 244. L. 444; Fowler vs. Gordon, 5 Ky. L. "There is a great difference between Eep. 332; Nelson vs. Donovan, 16 a levy upon goods and a levy upon Mont. 85; 40 Pac. 72; Bolles vs. land. The goods are taken from the Bird, 12 Colo. App. 78; 54 Pax:. 403. possession of the owner by the levy, '» Bingham vs. Mears, 4 N. D. but the owner of the land remains 437; 61 N. W. 808; Cox vs. Mulhol- in possession aiter the levy, and Ian, 6 Mart. (La.) 649; Davis vs. cannot be dispossessed until after Patrick, 57 Fed. Kep. 909; Mix vs. the land is sold." People, 86 III. 329; Day vs. Mc- Herrick vs. Swartwout, 72 111. Phee, 93 Pac. 670; 41 Col. 467. 340; Robinson vs. Brown, 82 111. " Callahan vs. Saleski, 29 Ark. 279' 216; Hawley vs. Gray Bros. Pa.ving 'sMurdoek vs. Brooks, 38 Cal. Co., 127 Cal. 560;' 60 Pac. 437; 596; Steinhauer vs. Colmar, 11 Colo. Shannon vs. Dodge, 18 Colo. 164; 33 App 494; 55 Pac. 291; Staley vs. Pac. 61; Kiernan vs. Cameron, 66 Howard, 7 Mo. App. 377; Trogden Miss. 442; 6 South. 206; Lowe vs. vs. Cleveland Stone Co., 53 111. App. Riley, 57 Neb. 252; 77 N. W. 758; 206; Ayers vs. Duggan, 57 Neb. 750; Holbrook vs. Investment Co., 32 Oreh 78 N. W. 296; Wallerstein vs. Aimer, pon 104; 51 Pac. 451; Hickcock vs. Suretv Co., 15 N. Y. Suppl. 9S4; Bell, 46 Tex. 610; Mayott vs. Knott, Babbi'tt vs. Finn, 101 U. S. 7; Ful- 92 Pac. 240; 16 Wyo. 108. ler vs. Aylesworth, 75 Fed. Eep. 'Ta Moore va. Huntington, 84 U. 694; Sandoval vs. U. S. F. & G. Co., S. 417; U. S. Surety Co. vs. Amer- 100 Pac. 816: 12 Ariz. 348; Bank- ican Fruit Co., 40 App. D. C. 239. er's Surety Co. vs. . Security Trust Beall vs. New Mexjeo, 16 Wall. Co., 39 App. D. C. 354. 535, Bradley, J.. "A party who 74 Hunt vs. Hopkins, 83 Mo. 13. enters his name as surety on an ap- 7B Bell va. Walker, 54 Neb. 222; peal bond does it with a full knowl- 74 N. W. 617 ; Teel vs. Tice, 14 N. J. edge of the responsibilities incur- JUDICIAL BONDS. 329 ment by summary process may be entered against the surety even though no notice is given him.'* In an action on an appeal bond, evidence of the Appellate Court's judgment against the principal is conclusive against the sureties on the bond of such principal.'"* §188. Measure of damages in an actioa upon an appeal or stay bond. The amount of recovery upon a bond will be limited in any event to the amount which 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, sueh excess of undertaking being void for want of consideration.'* The amount recoverable will 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 by 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.*^ A bond was conditioned that the "appellant shall diligently prosecute his appeal to effect and pay all damages and costs awarded against him on such appeal." The judgment of the red. In view of the law relating mere delay) can be subserved by to the subject it is equivalent to a compelling the appellees to bring consent that judgment shall be a separate action on the appeal entered up against him if the bond." appellant fails to sustain his ap- '« Phelan vs. Johnson, 80 Iowa peal. If judgment may thus be 727; 46 N. W. 68. entered on a recognizance, and '*" Commonwealth of Pennsylvania against stipulators in admiralty, we vs. Fidelity & Deposit Co., 180 Fed. see no reason in the nature of 292. See also Costello vs. Bridges, things, or in the provisions of the 142 Pac. 687. Constitution, why this effect should ^» Ante Sec. 199. not be given to appeal bonds in 80 Johnson vs. Ward, 21 Ky. L. other actions, if the legislature Kep. 783; 53 S. W. 21; Many vb. deems it expedient. No fundamental Sizer, 6 Gray 141. constitutional principle is involved; si jlirhie vs. Ellair, 60 Mich. 73; no fact is to be ascertained for the 61 N. W. 1020. But see Expanded purpose of rendering the sureties Metal Co. vs. Bradford, 177 Fed. liable, which is not apparent in the 604, where it was held that on ap' record itself; no object (except peal from the U, S. Circuit Court 330 THE LAW OF SURETYSHIP. lower court was reversed in the Appellate Court, but the ap- pellee then appealed to the Supreme Court, where the judg- ment of the Appellate Court was reversed and that of the trial court affirmed. It was held that the bond was liable only for the costs in the Appellate Court and not for those in the Supreme Court.*^" A bond given on appeal from an order overruling a motion to vacate the appointment of a receiver, and requiring appel- lants to prosecute the appeal with effect, or "pay all the costs which have accrued in the court below," binds the surety for costs involved in the subject-matter of the appeal, and not for the costs accrued in the main suit.'^' If the Statute points out the requirements 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 eases does not cover the amount of the original decree, but only such costs and 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 cases where the appeal stays execution to " all damages and costs. ' ' This is held to cover only the costs in the Appellate Court, and such deterioration and waste of the prop- erty as results from the delay incident to the appeal, and does to the Circuit Court of Appeals, a bonds will not relieve the sureties surety on a bond for costs is liable from those requirements. Stults vs. not only for the costs in the Appel- Zahn, 117 Ind. 297; 20 N. E. 184. late Court, but also for those in- But see Boulden vs. Estey, 92 Ala. curred in the court below. 182; 9 South. 283. Where the bond 81* Breed vs. Weed, 130 Wis. 264; was conditioned for the payment of 110 N. W. 197. costs only, although the Statute re- 816 American Surety Co. vs. Koen, quired a bond to cover costs and 107 S. W. 938; 49 Tex. Civ. App. damages, and it was held that the 98. liability on the bond was limited to 82 Chandler vs. Thornton, 4 B. its ex^ict lanpuape. Mon. (Fv.) 360; Gilpin vs. Hord, s^olauder vs. Hunter, 142 N. W. 85 Kv. 213; 3 S. W. 143. Zfll: 3& S D. 108; Marean vs. In "Indiana the Statute snecifi- Stanlev. 34 Col. 91; 81 Pac. 7W; cally provides that omissions of Supeivisors vs. Kennicott, 103 U. statutory requirements for appeal S. 554. JUDICIAL BONDS. 331 not cover the original decree nor interest pending appeal, nor rents and profits upon the land.^^ The Statute in some of the States requires the appellant in foreclosure to execute a bond conditioned to pay the debt.** Wihere no personal judgment is rendered in an action of fore- ssKountz vs. Omaha Hotel Co., 107 U. S. 378; 2 S. Ct. 911, Brad- ley, J. (p. 39"2) : "The plaintiff, in thia case, was not entitled to posses- sion, nor to the rents and profits. His foreclosure suit did not seek posses- sion, but sought a sale ot the spe- cific thing — the land. In such a case, until the litigation is ended, it doth not appear that there must be a- sale, or even that the plaintiff is en- titled to a sale. The defendant in possession is entitled to redeem the land until a sale is made, and until then he is entitled to the rents and profits, which belong to him as of right. The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not belong to him. Waste, that is, destruction or injury to the land itself, as before stated, is an injury to the mort- 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, accumulation 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 9?ile is male fiecorrlingly 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 aoe- eific thing, the land itself, and not the rents and profits tlhnt consti- ■tutes tbe pledge, and delay of sale caused by the appeal, as before said, deprives ' the mortgagee of no legal right. It may be an incidental dis- sfdvantape or inconvenience, but in our judgment it is not a legal dam- age contemplated by the ajppeal bond." Miller, J. (dissenting), p. 400: "In all cases of insolvent mortgagors the rule, as construed by the Court, offers 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 sate, 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 *he 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 jt litigates without a shadow oi 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 wad detention of the property as one of the liabili- ties incurred, if the corporation fails to make good its plea." See alsb, as supporting the view that rents and profits cannot be re- covered UT)on an appeal, .and fore- closure. Wood vs. Foilton, 2 Harr. & (i. (Md.) 71; Hutton vs. Lock- rid^e. 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 apipeal. Killfoil vs. Moore, 45 S. W. (Tex. Civ. App.) 1024. 84 Whan vs. Erwin, 27 lia,. Ann • 706. See also Marchand vs. Frellsen, 105 U. S. 423, construing the Louis- iana Statutes. 332 THE LAW OF SUEETYSHIP. elosare, na recovery can be 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 appealb, 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 eieobnent 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.'* SB Hinkle vs. Holmes, 85 Ind. 405 ; Berryhill vs. Keilmeyer, 33 Iowa 20 ; Knapp vs. Van Etten, 95 Hun 428; 8 N. Y. S. 415; Mississippi Val. Trust Co. vs. Somerville, 85 Mo. App. 265. But see Rogers v. Min- neapolis Thresihiing Maeh. Co., 48 Wash. 19; 95 Pac. 1014. 8« Sosman vs. Oonklin, 6'5 Mo. App. 319; Mareau vs. Stanley, 34 Col. 91; 81 Pac. 759. See also Copeland vs. Dixie Lumber Co., 57 So. 124; 4 Ala. App. 230. STWillson vs. Glenn, 77 Ind. 585. 88 Friedmian. vs. Lemle, 38 La. Ann. 654. 89 Lunsford vs. Baskins, 6 Ala. 512; Fitzpatrick vs. Todd, 79 Ky. 524. CoTifro— Yates vs. Burch, 87 N. Y. 403, Dcmforth, J.: "Although it should be conceded that the original judgment oould have been enforced against the defendants therein only to the extent of assets in hand, after payment of prior claims, the concesi- sion would not aid the defendants here. Their promise or undertaking was upon sufficient consiideration, and by reason of it the judgment- creditors were prevented from pur- suing such property as might be ini possession of the judgment-debtors, or marshalling tne 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 se- curity in fact given, and which may well be construed as an admission of the possession of sufficient assets to pay the judgment." See also Schmumcker vs. Steide- mann, 8 Mo. App. 302. soCahall vs. Citizens Mut. Bldg. Assn., 74 Ala. 533; Miller vs. Vaughn, 78 Ala. 3'23; Hays vs. Wil- staoh, 101 Ind. 100; Adams vs. Gil- christ, 63 Mo. App. 639; Gleeson's Est., 192 Pa. 279; 43 Atl. 1032; St. JUDICIAL BONDS. 333 Attorney 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 affirm- ance.®" The bond -will be liable for the judgment of the Appellate Court, even though the amount is in excess of the judgment ap- pealed from."' 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 the surety should have paid, which would be the time of demand, and the bringing of the action is sufficient demand."^ Louis Smelting Co. vs. Wyman, 22 9z George vs. Biaclioff, 68 111. 236. Fed. Kep. 184; Norton vs. Davis, 13 as Cooper vs. Rhodes, 30 IJa. Ann Tex. Civ. App. 90; 35 S. W. 181; 533. Tarpey vs. Sharp, 12 Utah, 333; 43 "* Zeigler vs. Henry, 77 Mich ^a«- 104. 480; 43 N. W. 1018. An appeal in an action to qiiiet But see Tyson vs. Sanderson, 45 title does not charge the appellant Ala. 364. Where it is held that a upon the hand for the rents and recovery can be had for the full profits accruing during his posses- amount of a guardian's bond and sion pending appeal. Carver vs. the costs of the action in addition Carver, 115 Ind. 530; 18 N. E. 37. See also State vs. Homey, 44 Wis siKellc^gvs. Howes, 93 Cal. 586; 615. 29 Pac. 230; Noll vs. Smith, 68 Ind. solves vs. Merchant's Bank, 12 1«8; Deisher vs. Gehre, 4gKas. 583; How. 159; Crane vs. Andrews' 10 26 Pac. 3; Williams vs. Fidelity & Colo. 265; 15 Pac. 331. Deposit Co., 42 Col. 118; 93 Pac. Whereatt vs. Ellis. 103 Wis 348- 1119; Higginsi VB. J. I. Case Thresb- 79 N. W. 416, Marshall, J..- "ft was ing Mach. Co., 144 N. W. 1037; 95 an andent doctrine, and is still fpl- ^^^- 3- lowed to some extent in England (7o« or even the caprice of the latter." See also State vs. Wakely, 28 Neb. 431 ; 44 N. W. 488; Smith vs. Kuhl, 26 N. J. Eq. 97. JTJDICIAl BONDS. 339 nary promisor in suretydiip, agree to pay the debt of another, and his undertaking is not collateral to a promise or obligation of his principal, except in cases where the principal also signs the bond, or in some other way obligates himself to respond to the damages resulting from his injunction. The United States Supreme Court has held " without a bond for the payment of damages or other obligation of like effect, a party against whom an injunction wrongfully issues can re- cover nothing but costs, unless he can make out a case of mali- cious prosecution. It is only by reason of the bond, and upon the bond, that he can recover anything." ^^* §193. When action for damages upon an injunction bond ac- crues. 'So cause of action arises upon an injunction bond until it is finally determined that the injunction ought not to have been granted. This determination must be by a judgment of the court, or something equivalent thereto. A dismissal of an action without prejudice because some of the defendants were not served, is held not to constitute a breach 111 Meyers vs. Block, 120 U. S. 545; 43 N. E. 456; Manlove vs. 211 ; 7 S. Ct. 525. Vick, 55 Miss. 567 ; Campbell vs. Hayden vs. Keith, 32 Minn. 277; Carroll, 35 Mo. App. 640; Palmer 20 N. W. 195, Vanderiurgh, J.: vs. Foley, 71 N. Y. 106; Mark vs. "The plaintiffs contend that when Hyatt, 135 N. Y. 306; 31 N. E. 1099. the Court, pursuant to the statutes. In the case of Newark Coal Co. orders the writ to issue, the right to vs. Upson, 40 O. S. 25, it was held — > the actual damages accrues as an " It may now be considered the ap- incident to the allowance and issu- proved doctrine, that, an action for ance of the process, whether a bond malicious prosecution of a civil suit is filed or not, and that in case a may be maintained, whenever, by bond with sureties is filed, as re- virtue of any order, or writ, issued quired by the statute, it is to be re- in the malicious suit, the defendant garded simply as a further or addi- in that suit has been deprived of tional security for such damages. his personal liberty, or of the pos- We are unable to assent to this. The session, use, or enjoyment, of prop- bond is not cumulative, but the only erty of value. The name, or form, security of the defendant in the in- of the writ, or process, is imma- junction suit." terial. It may be an order of arrest. See also Asevado vs. Orr, 100 Cal- or of attachment, or of injunction. 293 ; 34 Pac. 777 ; Harless vs. Con- " The malicious prosecutor cannot Burners' Gas Trust Co., 14 Ind. App. shield himself behind the interlocu- Mo' THE LAW OF SUEETTSHIP. of tKe bond, as it is not thereby determined that no injunction should havei been allowed. ^'^^ But a dismissal of an action for want of prosecution is such a final determination as amoimts to a finding that the injunc- tion ought not to have been granted, there being no express reservation of a right to institute a further action upon the same cause."' ^ So also a voluntary dismissal by the plaintiff, while not a de- termination by the court of the merits of the question as to whether' the plaintiff was entitled to the injunction allowed, yet it is equivalent to a judgment, since the court would be justified in finding that by the act of dismissal, the plaintiff admits that he is not entitled to the injunction.^" But an agreement by the parties that an injunction shall be dismissed, releases the sureties, since in effect it is a waiver by the defendant of his right to damages.^^^ Where the action of the court, dissolving an injunction, is based upon some facts or circumstances arising after the allow- ance of the writ, such dismissal has no relation to the merits of the issues upon which the injunction was originally granted, and it is not a judicial determination that the writ was wrong- fully issued, and hence, does not constitute a breach of the bond."" toiy order of the judge, based upon 793; Sharpe vs. Harding, 65 Mo. his own malicious, eas parte applica- App. 28 ; Pacific Mail S. S. Co. ts. tion and affidavit." Lenling, 7 Abb. Pr. (K S.) 37; U2Krug vs. Bishop, 44 0. S. 221. Pacific Mail S. S. Co. vs. Toel, 85 But see Yale vs. Baum, 70 Miss. N. Y. 646; Roach vs. Gardner, 9 225; 11 South. 879; Mitchell vs. Gratt. 89; Mayor of East Lake vs. Sullivan, 30 Kan. 231; 1 Pac. 518. De Vore, 53 So. 1018; 169 Ala. 237. iiaPenniman vs. Richardson, 3 "b Large vs. Steer, 121 Pa. 30; La. 101; Whitehead vs. Tulane, 11 15 Atl. 490; Prefontaine vs. Eich- La. Ann. 302; Manufacturers' & ards, 47 Hun 418. ^ , , „ , T^ o-T -IT AA 1^® Apollinans Co. vs. Venable, Traders' Bank vs. Dare, 67 Hun 44; ^^^ n Y 46; 32 N. E. 555. In tMs 21 N. Y. S. 806; Kane vs. Casgrain, ^^^^ ^^^^^ ^^^ preliminary injunc- 69 Wis. 430; 34 N. W. 241; Bowling y^^ ^^g allowed, the plaintiff waa vs. Polack, 18 Cal. 625. adjudged to be in contempt of court, 114 Frahm vs. Walton, 130 Cal. and as a punishment, the Court .396- 62 Pac. 618; Alliance Trust Co. directed that the complaint be dis- YS. Stewart, 115 Mo. 236; 21 S. W. , ^^^^ and the injunction dissolved. JUDICIAL BONDS. 341 Thus where pending a final hearing of an action in which a temporary injunction had been allowed, the defendant died, and on that account the injunction was dissolved aiid the action dis- missed, it was held that the representatives of the deceased de- fendant had no cause of action on the bond/^^ Where the form of the bond is to respond in damages " pro- vided the injunction is dissolved " and does not recite the more usual condition with reference to a judicial finding as to the merits of the grounds upon which the writ was issued, it is im- Andrews, J.: "We are of the opdnion that the dismissal of the coiaplaint and the dissolution of the injunction under the cireum- stances stated, did not, either in fact or in law, constitute an adjudi- cation that the plaintiff was not en- titled to the preliminary injunction dn the action. That question was not before the court, and was not and could not have been decided in the contemipt proceedings. The un- dertaking related to the right of the. plaintiff to a temporary injunction at the commencement of the action, and the obligation assumed by the sureties was to pay damages in case the Court 'finally decides that the plaintiff was not entitled thereto.' " The sureties upon such an un- dertaking may be held in some cases, although there has been no formal adjuddeation against the right to the temporary injunctioii. Where the plaintiff ex parte, and without the consent of the defendants, en- ters an order vacating the injunc- tion and discontinuing the action, this is equivalent to an adjudica- tion that the plaintiff was not en- titled to the injunction when granted. The purpose of requiring an undertaking would be thwarted if in such a case the sureties were not held. (Pacific Muil S. S. Co. vs. Toel, 85 N. Y. 646.) "It would seem, upon the same principle, tha^ if the case was dis- missed upon the application of the defendant for want of prosecution, the inference should be indulged that no right to an injunction ex- isted when it was issued, and the dismissal should be treated as an adjudication against the right. " But where, as in the present case, the defendants secure «. 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 relation to the merits, ei/ther di- rectly or by inference, it would, we think, be contrary to the natural or reasonable interpretaition of th6 transaction to hold that the dismis- sal was a determination by the court that the pUintiff, at the time the temporary injunction was is- sued, '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 N. Y. 106; Worden vs. Klag, 13 Ohio C. C. 627. In the case last citedi the injunction restrained the party from proceeding upon an action in ejectment pending in a justice court awaiting the determination of an equitable action in another court, the justice court not having equit- able jurisdiction. The equity case being determined against the in- junction plaintiff and the injunctioii dissolved, action was brought on the bond. The Court holds: "The party was compelled to resort to a court of equity to obtain relief in resjard to matters that could no(t be set up as a defense in an action of detainer, and so the Court issued an iniunction, and it was rightfully issued. She was rightfully in pos- session until after the decision ol t^e Court It is not de- cided, and ought not to be decided, that the injunction was improperly issued. We think the plaintiff was entitled to the injuilction until the decision of the case, and that there has been no breach of the condition of the bond." 117 Johnson ts. Elwood, 82 N. Y. 362. 342 THE LAW or SUEETYSHIP. 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 dianissal 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.^^" "8 Alliance Trust Co. vs. Stewart, 115 Mo. 236; 21 S. W. 793. lis Betts vs. Mougin, 15 La. Ann. 52. 120 Columbus, Hocking Valley & Toledo Ry. Co. vs. Burke, 54 O. S. 98; 43 N. E. 282, Minshall, C. 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 jthey 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. 343 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.^^* §194. 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. It is the bond, and not the order under which it was given, which constitutes the contract, and the language of the bond cannot be enlarged by reference to the terms of the order.^^^" There must be a consideration, and where the bond is given after 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 will, 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 Contra — Gray vs. South & North for holding that it should. In such Alabama R. R. Co., 50 So. 352; 162 case the defendant has an oppor- Ala. 262. tunity to insist that, before the dis- 123 Clark vs. Clayton,, 61 Cal. 634; missal is had, the court determine ICilpatriok vs. Haley, 6 Col. App. whether the injunction ought to 407; 41 Pac. 508; Bank of Monroe have been granted, so that an action vs. Gifford, 65 Iowa 64S ; 22 N.W. 913. may be prosecuted on the bond, if Cohn vs. Lehman, 93 Mo. 574; 6 such is his purpose. If he. fails to S. W. 267. In this case the pre- do this, and consents to the dismis- liminary injunction was dismissed sal of the action, his conduct is on motion, and on final hearing, the consistent with the inference that case was dismissed. An appeal was he intends to waive any right he taken to the Federal Supreme Court, may have on the bond." but without supersedeas, and it was 121 Walker vs. Pritrihard, 34 IlL held that the right of action on the App. 65. bond was suspended during the a/p- Contra — Pierson vs. EHs, 46 Hun peal. 336. See also Ya'oo & M. V. E. R. Co. In Crawford vs. Atlantic Coast vs.Adams, 78 Miss. 977 ; 30 South. 44. Lumber Co., 89 S. C. 456; 71 S. E. Contra — Howard vs. Lindeberg, 1049, it was held that where an 2 Alaska 301; Gray vs. South & injunction is sustained in part, the North Alabama R. R., 50 So. 352; defendant is entitled to such dam- 162 Ala. 262. ages under the injunction bond as 1230 American Exchange National te has suffered by reason of ao Bank vs. Goubert, 210 N. Y. 421 ; much of the injunction order as has 104 N. E. 928. not been sustained. '24 Carter vs. Mulrein, 82 Oai. i22 0vington vs. Smith, 78 111. 167; 22 Pac. 1086. 250. 125 Lambert vs. Haskell, 80 Cal. 6U; 22 Pac. 327. 3M THE LAW OF SUEETTSHIP. form of the bond,^^° but words of doubtful meaning will be con- strued if possible to avoid a forfeiture.^^' Tbe clerical omission of words wbidh are necessary to com- plete the sense of the instrument, and whicb 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 itseK.^*^ §195. Defenses of sureties upon injunction bonds. The sureties, who by their bond, assist the plaintiff to invoke 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 the Ala. 394. undertaking was void on that ac- 127 Lambert vs. Haskell, 80 Cal. count. Held— "The question we 611; 22 Pac. 327; Shreffler vs. Na- must determine is whether the de- delhofferj 133 111. 536. fendant in such action had the right i28Harman vs. Howe, 27 Gratt to resist the making of the order 676. and to apply to the courts for its 129 Adams vs. Olive, 57 Ala. 249. dissolution, and after having suc- 130 Hamilton vs. State, 32 Md. cessfully done so, hold the plaintiff 348. upon his bond for the necessary ex- 181 Williamson vs. Hall, 1 O. 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. B. 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 over the person of the de- one. He must determine for him- feUjdant, and when sued upon the self whether the court has jurisdic- JUDICIAL BONDS. 345 out probable cause."^ , Where the prohibition of the writ is directed against- the doing of an act which 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 sustained.^'" tion to make the order. If, in ad- dition to the proposition of law in- ■volTed, there are disputes concern- ing the place of his domicile, he nrast, 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 contempt. 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 thait 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 naiture of the case, result if the defendant is restrained from doing that which he has a right to do. He mu'sit resist the order, and must, by himself or coun- sel, defend himself against proceed- ings for contempt. He can not go his way as though no su; 42 Pac. 650; Thomas vs. McDaneld, 77 Iowa 299; 42 N. W. 301; Colby vs. Me- servey, 85 Iowa 5SS; 52 N. W. 499; Neiser vs. Thomas, 46 Mo. App. 47; Binford vs. Grimes, 26 Ind. App. 481; 59 N. E. 1085; Bush vs. Kirk- bride. 30 Sou. Rep. (Ala.) 780; Nimocks vs. Welles, 42 Kan. 39; 21 Pac. 787; Cook vs. Chapman, 41 N. J. Eq. 152; 2 Atl. 286; City of Hel- ena vs. Brule, 15 Mont. 429 ; 39 Pac. 456, 852; New Najt. Turnpike Co. vs. Dulaney, 86 Ky. 516; 6 S. W. 590; Weierbauscr vs. Cole, 109 N. W. 301; 132 la. 14. Contra-— Oliphint vs. Mansfield, 36 Ark. 191 ; Sensenig vs. Parry, 113 Pa. 115; 5 Atl. 11; Jones vs. Rosedale St. Ey., 75 Tex. 382; 12 S. W. 998; Eevell vs. Smith, 106 Pac. 863; 25 Okl. 508; Jones vs. Rountree, 74 S. E. 1096; 11 Ga. App. 18.1; StringfieM vs. llirach, 94 Tenn. 425; 29 S. W. 609; Midgetfc vs. Vann, 158 N. C. 128; 73 S. E. 801. In Kentucky it is held that when the injunction is the only relief sought, and in fact gives the relief if sustained, no recovery for coun- sel fees can be had. Tyler vs. Ham- ilton, 108 Ky... 120;. 55 S, W. 920. Contra — Seese vs. Northvray, 58 Iowa 187; 12 N. W. 258; State vs. Taylor, 68 S. E, 379; 67 W. Va. 3486 THE LAW OF SURETYSHIP. eral Courts,^"* althougn recovery can be had in a State Court upon a bond filed in a Federal action.^'' It is held that attor- ney fees contracted for, but not actually paid, can be recov- ered."* 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 585; iChioago A. & N. R. R. Co. vs. Whitney, 121 N. W. 1043; 143 la. 506. 164 "There is no fixed standard by TsChich the honorarium can be meas- ured. Some counsel demand much more than others. More counsel may be employed than are neces- sary. When both client and coum- ael 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 nec- essary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than that in the original cause." Oelrichs vs. Spain, 15 Wall. 211. ISO Mitchell vs. Hawley, 79 Oal. 301; 21 Pac. 833; Hannibal & S.t. J. R. R. Co. vs. Shepley, 1 Mo. App. 254; Wash vs. Lackland, 8 Mo. App. 122; Aiken vs. Leathers, 37 La. Ann. 482. Contra — Tullock vs. Mulvane, 184 U. S. 497. Recovery of attorneys' fees in dissolving an injunction was al- lowed by the .Supreme Court of Kansas against a bond filed in a Federal Court for the District of In rerrersing the judgment the Supreme Court of the United States held that "a bond given in pursuance of a law of the United States is governed, as to its con- struction, not by the local law of a particular State, but by the prin- ciples of law as determined by this court and operating throughout tihe courts of the United States." 156 Holthaus vs. Hart, 9 Mo. App. 1; Crouse vs. Syracuse C. & N. Y. R. R. Co., 32 Hun 497; Wittich vs. O'Neal, 22 Fl'a. 592; Under'hill vs. Spencer, 25 Kan. 71; Meaux 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; Littleton vs. Burgess,' 91 P. 832; Ifi Wyo. 58. Contra — ^Willson vs. MeEvoy, 25 Oal. 169; Hooper vs. Patterson, 32 Pac. Rep. (Cal.) 514. In Schening vs. Oofer, 97 Ala. 726; 12 South. 414, it was sJiown that the services of counsel were rendered gratuitously, and it was held that no recovery for such serv- ices could be had on the bond. 15T Langworthy 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. JUDICIAL BONDS. 349 be recovered, although the injunction is finally dismissed.^''' Attorney fees in modifying an order of injunction can not be recovered on the 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.'"" A municipality defending by its attorney, who is paid an annual salary, is not entitled to counsel fees by way of dam- ages on the dissolution of the injunction. But where the city employs an associate counsel to assist its city attorney in the dissolution of the injunction, such associate counsel's fees may be recovered as damages under the bond.'""" Where no motion is made to dissolve the injunction until the final hearing of the case on its merits, and the injunction is then dissolved, no recovery can be had for counsel fees.'"' vs. Pac. Coast S. S. Co., 101 Oai. 216; S5 Pac. 691; Brown vs. Bald- win, 121 Mo. 126; 25 S. W. 863; Noble vs. Arnold, 23 0. S. 264; lav- ingston vs. Exum, 19 S. C. 223; Lamb vs. Shaw, 43 Minn. 507; 45 N. W. 1134; Tabor vs. Clark, IS Col. 434; 25 Pac. 181; Chicago, A. & N. R. R, Co. vs. Whitney, 121 N. W. 1043; 143 la. 506. It is held in Kentucky that where the purpose of the suit is to obtain a perpetual injunction, and tlie de- fendant secures a. dissolution on motion of the temporary injunction, counsel fees touching the matter of motion for dissolution are not re- coverable. Bemiis vs. Spalding, 9 Ky. L. Rep. 764 ; Barber vs. EdeHn, 9 Ky. I/. Rep. 971. i58Curtiaa vs. Baehman, 110 Oal. 433; 42 Pac. 910; Cunaingham VB. Finch, 88 N. W. (Neb.) 168. In Wallace vs. York, 45 Iowa 81, the defendant's counsel in the in- junction procedding prepared and filed a motion to dissolve, and the necessary affidavits to sustain it, but did not press the matter orf dis- solution, and the injunction was dissolved at the final hearing, and the services of counsel in the mat- ter of the motion to dissolve were considered to be a proper element of damages. 159 Ford vs. Loomis, 62 Iowa 586; 16 N. W. 193; 17 N. W. 910. But see London & Brazilian Bank vs. Walker, 74 Hun 39S; 26 N. Y. S. 844. looNeiser vs. Thomas, 46 Mo. App. 47; Citizens Trust & Guarainty Co. vs. Ohio Valley Tie Co., 128 S. W. 317 ; 138 Ky. 421. leoo Nixon vs. Biloxi, 76 Miss. 810; 25 So. 664; Vicksburg Water- works vs. Mayor of Vioksburg, 54 So. 852; 99 Miss. 132. 161 Donahue vs. Johnson, 9 WasIL 187; 37 Pac. 322; Whdteaide to. 350; THE LAW OF SURETYSHIP. Services rendered by counsel in resisting the allowance of ah injunction are not recoverable as damages, as such charges are incurred before the injunctio^^ is issued, and so are not the result of it.^'^ Where the injunction has been dissolved on motion and the case dismissed and the plaintiff appealed, it was held that fees for services in the Appellate Court in a successful endeavor to sustain the judgment of the lower court were properly allow- able in an action on the bond/'^" §198. 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 ffnally 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 Noyac Cottage Assoc., 84 Hun 555; a dissolution of the temporary in- 32 N. Y. S. 724; Anderson vs. An- junction, but also in resisting the derson, 55 Mo. App. 268; State vs. issuing of a permanent injunction. Nash, 79 S. E. 829 ; Callins vs. Huff- "The two injunctions must be re- man, 93 P. 220; 48 Wash. 184; Buiv garded, not as independent of each nett vs. Stark, 136 N. W. 670; 155 other, but as connected parts of one N. W. 688. plan for securing relief; virtually, 162 Eandall vs. Carpenter, 88 N. a continuance of the preliminary Y. 293; Curtiss vs. Bachman, 110 injunction was sought, and the de- ,Cal. 433; 42 Pac. 910. fendants are entitled to theii: ex- See also Youngs vs. McDonald, 67 penses in successfully opiposing it." N. Y. S. 375. A distinction is made Sargent vs. St. Mary's Orphan Boys' where, in addition to a prayer for a Asylum, 190 N. Y. 394; 83 N. E. temporary restraining order, there 38; Perlman vs. Bernstein, 93 App. is a request for an order on the Div. 335. defendant to show cause why an I62i Miller vs. Donovan, 13 Idaho injunction Aould not be made per- 735; 92 Pkc. 991. manent. It has been held tJiat the Contra — C. H. Albers Commission bond given for the temporary in- Co. vs. Spencer, 139 S. W. 321; 236 junction is liable for attorney's fees Mo. 608; Ellwood Mfg. Co. vs. Ean- for services not only in procuring kin, 70 Iowa 403; 30 N. W. 677. JUDICIAL BONUS. 351 sureties either to pay the plaintiff'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 will 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 vexor iious 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 opfressive." 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, in' 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 imder the limitations of certain i«3 The form of forthcoming bond answer the Judgment of the court in provided for in many States, and the action. which best preserves the rights of i«* Wilson vs. Outlaw, Minor's- both parties to the action, is that Eep. 367. " It was obvious that the the property or its appraised value taking and detention of his proper- »» money shall be forthcoming to ty might be ruinous to the owner 355^ THE LAW OF SUKETYSHIP. statutes, the defendant in attachment may have an action on the 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 shovra as a basis of recovery, and that the damages need not be first adjudicated against the principal. §199. Attachment bonds not forfeited for irregularities of eze- 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 wronffful or vexa- tious suing out' if it had been the intention of the Iiegislature 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 tbose 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- jing it out may be ruinous to his credit and circumstances, although obtained without the least malice toward him If the plaintiff, under colour of such process, do, or procure to be done, what the law 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 have 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 atr 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 Gfeorgia, Maryland and Mississip- pi under a similar statute. Sledge vs. Lee, 19 Ga. 411; McLuckie vs. Williams, 68 Md. 262; 12 Atl. 1; Holcomb vs. Foxworth, 34 Miss. 266. JtlDICIAX BONDS. 353 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 the right to have attachment to cases ia which a bond is executed before the writ issues, yet if the bond is not given until after the attachment is levied, it vrill 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 where 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 afiSdavit upon which it was issued, the sureties are not estopped from setting up such defraise.^'* §200. 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 i«8 Sumpter vs. Wilson, 1 Ind. i^i Gibbs vs. Johnson, 63 Mich. 144. 671; 30 N. W. 343. i«T Sheppard vs. Collins, 12 Iowa 1^2 Murphy vs. Montandon, 3 570; Wright vs. Keyes, 103 Pa. 567. Idaho 325; 29 Pac. 851. 188 Ripley vs. Gear, 58 Iowa 460 ; See also Zechman vs. Haak, 85 12 N. W. 480. Wis. 656; 56 N. W. 158; Cadwell «8»Hibbs vs. Blair, 14 Pa. 413. vs. Colgate, 7 Barb. 253. 170 Ward vs. Whitney, 8 N. Y. 442. 354 THE LAW OF SUEETYSHIP. ■wliBtlier the defendaift is limited to his costs and expenses in disr- isplving the attachment, the injury to his property, and the loss incident to its detention. . i It was held in Tennessee and in several other States that a recovery could be had on the bond both for the statutory penalty and the common law penalty for malicious prosecution.^" It is held, however, that the laalice 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 (Temn.) 456; Eenfcrt vs. Elliott, 79 Tenn. 235. The same rule is applied in Texas. Wallace vs. Finberg, 46 Tex. 26; Mayer vs. Duke, 72 Tex. 445; 10 S. W. 565; Moore vs. Wit- tenbeig, 13 La. Ann. 22. See also Seattle Crockery Co. vs. Haley, 6 Wash. 302; 33 Pac. 650; Baldwin vs. Walker, 94 Ala. 514; 10 South. 391. I'lTynburg 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. iTsPettit 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 been seriously affected, his sensibilities wounded, and his business opera- tions materially deranged, in conse- quence of the atcachment 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- curing to him damages adequate to JUDICIAL BONDS. 355 |201. Forthcoming or redelivery bonds. A fortheoming bond is either executed directly to the plain- tiff in the action, or to the officer holding the writ for the benefit of the plaintiff, and provides for the return of the prop- erty in case judgment is awarded the plaiatiff, or in default of a return of the property, to pay the plaintiff's judgment, or in some jurisdictions to pay the appraised value of the property to apply on the plaintiff's judgment.''" Such bond does not affect the attachment itself,*'"" and pro- ceedings may thereafter be maintained to dissolve the attach- ment, 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 rightfully obtained, and is only binding upon the obligors in case the attachment is still subsisting at the time the judg- ment is entered.'" Although the bond for release of the attached property is not in the form required by statute, it wiU be binding on the surety if the property is in fact released, such as where the only con- dition 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.''* the injury to the property attached, M. Co. vs. U. S. F. & G. Co., 35 auld the loss arising from the depri- Mont. 23; 88 Pac. 565; Floyd vs. vation of its use, together with the Anderson, 128i P. 240; 5 Okl. Cr. 65. actual costs and expenses incurred. ^''^ In Ohio, the redelivery Stat- It cannot be rationally presumed ute provides "The sheriff shall de- that 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 sjieh 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 cient to embrace every possible in- double the appraised value of the jury that the defendant might bus- property, that the property or its tain, would be in effect, to defeat in a^^raised value in money, srhall be a preat measure, the object of the forthcoming to answer the judgment statute, by rendering it difficult, if of the court in the action." E. S. not impracticable, for the plointiff 0., See. 5.529. to execute the necese-^rv bond," i^eoPchunack vs. Art Metal Nov- Blakeley's Trustee vs. Bogard, 143 eltv Co., 84 Conn. 331; 80 Atl. 290. Ky. 377: 13fi P. W. 616. i^^ Alexander vs. Jacoby, 23 O. S. See nlso MeClendon vs. Wells. 20 SSR. S. C. .514: Commonwealth vs. Mag- . I's gchunaek vs. Art Metal Nov- nolia Villa laTiH Co., 163 Pa. 9fl; eltv Cb., 84 Conn. 331; 80 Atl. 290; 29 i»tl. 793- T^Hpr vs. ■Kutner. 97 Wright vs. Key«s, 103 Pa. 567. Gal. 490; 32 Pac. 563; Plymouth G. 356 THE LAW OF SURETYSHIP. 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 accordance 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 forth- coming bond and the property released to the defendant, it was held that no recovery could be had on the bond, since the at- tachment was not in fact dissolved.^*" A redelivery bond in attachment, conditioned to redeliver to the sheriff all of the property attached or pay the value thereof, is not satisfied by tendering to the sheriff a portion of the property, and offering to pay the value of the remainder, and this, though the remainder has been sold because perish- able."^'' A redelivery bond, fixing the value of the property attached, is conclusive on the sureties in an action to recover the pen- alty, and they cannot show a different value.^'^* A judicial sale following the sustaining of the attachment is conclusive on the parties to the redelivery bond as to the value of the property.**^" |202. Bonds to discharge attachment. A bond to dissolve or discharge an attachment is a final disposition of the attachment proceeding and is a substitution of the security of the bond for the lien acquired on the prop- erty. A motion to dissolve the attachment is no longer neces- sary after the filing of such bond and if such motion is pendiag, the bond operates to dismiss it, since the attachment being i7»SuIliyan vs. WiUiams, 43 Si C. 1820 Jones vs. Short, 101 P. 209; 4S9; 21 S. E. 642. . 53 Or. 525. ISO Schneider vs. WalHngford, 4 isas Jones vs. Short, 101 P. 209; Col. A^p. 150; 34 Pac. 1109. 53 Or. 525; Brumby vs. Barnard, See also Eddy vs. Moore, 23 Kas. 60 Ga. £92. 113. isacCreswell vs. Woodside, 15 Col. 181 Cortelwm vs. Maben, 40 Neh. App. 468; S3 Pae. 330; Jones vs. 512; .59 N. W. 94. Short, 101 P. 209; 53 Or. 625. 182 Edwards vs. Ptomeroy, 8 Col. 254; 6 Pac. 829. JUDICIAL BONDS. 857 dissolved by the bond, leaves nothing upon which an order of the couit can operate. The obligors on such bond are bound unconditionally to per- form the judgment of the court, and they constructively admit 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, SO Ky. 445; McMillan vs. Dana, 18 Cal. 339; Bowers vs. Beck, 2 Nev. 139; Ferguson vs. Glldewell, 48 Ark. 195; 2 S. W. 711; Smith vs. United States Express Co., 135 111. 279 ; 25 N. E. 525; Sohuyler vs. SyiLvester, 28 N. J. L. 487; Moffitt v. Garrett, 100 P. 533; 23 Okl. 3^8. Contra — Love vs. Voorhies, 13 la. Ann. 549; Bates vs. Kilian, 17 S. C. 553. By statute in Ohio a, defendant may at any time before judgment move for the ' discharge of an at^ tachment under which his property has been taken, although he has pre- viously given a bond for its dis- charge. William Edwards Co. vs. Goldstein, 80 0. S. 303; 88 N. E. J887; Leavitt vs. Rosenberg, 83 O. S. 230; 93 N. E. 904. But see Shevlin vs. Whelen, 41 Wis. 88. The execution of a bond to dis- charge the attachment releases the sureties upon the original attach- ment bora from all lilby, 153 111. 324, posed caSrmmeroial Bank Co., 62 Minn. 99; 64 N. W. 81. li vs. Valentine, 209 N. Y. 145; 102 the proprty is not returned and re- jf j; 544 covery is had for the value, the m- JUDICIAL BONDS. 375 turn the property.''^ But when the return of the property is made impossible by reason of a subsequent seizure under a process of law the sureties upon a replevin bond are not liable. ''* §216. Bonds given in the course of the administration of estates of deceased persons. Executors^ administrators or guardians might with some pro- priety be classified as public officers. They perform functions of a public character and give bond to the State for the benefit of all persons interested in the administration of their trust. Thair duties, however, are performed as officers of the court, under the direct supervision of the court, and unlike public offi- cers in general, they do not for themselves determine their own course of action in accordance with their own interpretation of the law, but at all times are guided by the decrees and orders of the court. Their position as ministerial officers of the court imposes special obligations which do not arise in the case of public offi- cers whose duties are fully prescribed by Statute. Public officers give bond to faithfully administer their office according to law. Judicial officers undertake to perform the .duty pointed out by the Statutes, and also to obey the orders of the court. Suretyship as related to this branch of the public service not only involves the fidelity of one charged with the execution of a trust, but also the varying and uncertain contingencies arising in contested legal proceedings. §217. Duties for which executors and administratars are chargeable on their bonds. If the decedent by his last will and testament points out the way in which the estate is to be administered, it is the duty of the administrator to follow the plan thus laid down, and his creased value by reason of the addi- s'sguppiger vs. Gruaz, 137 111. tion of labor cannot be recovered- 216; 27 N. E. 22; Capen vs. Bart- Busch vs. Fisher, 89 Mich. 192; 50 lett, 153 Mass. 348; 26 N. E. 873. N. W. 788. "^ Caldwell vs. Jans, 1 Mont. 570. 376 THE LAW OF STJEETTSHIP. bond is liable for his failure to so administer the estate. If he assumes to act upon hia own interpretation of the meaning of the will or the provisions of the law applicable to decedent's estates, he does so at the peril of himself and his sureties, and however reasonable his course of action may be, and notwith- standing he acts with the utmost good faith, if he mistakes the law, he must abide the judgment of the court, and such judg- ment may be enforced by recourse upon his bond. Administration trusts in many cases are involuntary. This is nearly always so as far as the beneficiaries are concerned, and tlie care and custody of property by operation of the law regu- lating the settlement of estates is placed in the control of these officers without the consent of those to whom it belongs. The trustee must be held to the full measure of diligence and fidelity which a prudent man bestows upon his own affairs. An administrator can not justify for a failure to perform an order of the court or to observe the regulations of the statute. He is clothed with no discretion in this respect, and whether the order or the Statute is reasonable or not, and whether it sub- serves the interest of the estate or not, it is nevertheless a duty wh?.ch by the terms of the bond must be observed. It is no justification that the ofiicer was advised by his coun- sel to do the wrongful act, although the advice was given in good faith and was apparently sound.^'^ The administrator is chargeable for negligence and bad judg- ment in investing funds of the estate where he assumes to act without order of the court or special direction of the will,"* 27' Bourne Vs. Stevenson, 58 Me. create a liability on the bond. The 499. Court said : " The question of good 278 Johnston vs. Maples, 49 III. faith on the part of the administra- 101 ; Probate Judge vs. Mathes, 60 tor and his counsel in making the N. H. 433; Baei-'s Appeal, 127 Pa. deposit does not arise, because it 360; 18 Atl. 1. cannot change the result. No one The administrator deposited the can doubt that so far as they were trust funds in a bank, taking there- concerned the highest integrity and for a certificate of deposit at 4 per utmost good faith characterized the cent, interest payable in twelve transaction. It is simply an in- montha, and the bank failed before stance of misplaced confidence, un- the expiration of the time, held to fortunate in its consequences, but JUDICLAI. BONDS. ''77 and the bond will be liable for the failure of the administrator to resist the allowance of unjust claims against the estate,'"* as well as for his failure to pay claims which have been allowed, where suiBcient funds are in his hands for that purpose. A re- fusal to pay a claim under these circumstances is equivalent to a conversion of the funds to his own use.*'" So also, a failure by the administrator to pay over to an heir the amount of his distributive share is a breach of the bond, and the heir need not first exhaust the funds of the estate.*" The same liability arises for failure to pay the widow the amount allowed by the court. ^''^ The failure by the administrator to properly observe the order of preference in the distribution of the assets, whereby the funds of the estate are exhausted, leaving unpaid claims enti- tled to preference, raises a liability against the bond.^*' Like- wise the payment in unequal proportions of claims in the same class creates a liability on the bond in favor of those creditors who do not receive their pro rata share."®* The neglect of an administrator to file his account for an unreasonable time bas been held to be a constructive conversion of the assets shown in the inventory, for which the sureties upon the bond are chargeable. "'° Where the administrator filed no inventory and made no which must nevertheless be disposed Shriver vs. Reister, 65 Md. 278 ; of according to the plain legal rules 4 Atl. 679; Ralston vs. Wood, 15 which govern all similar cases." 111. 159. 2'9 Smith vs. Cuyler, 78 Ga. 654; 282Choate vs. Jacobs, 136 Mass. 3 S. E. 406; Gold vs. Bailey, 44 111. 297. 491. Contra — ^Rocco vs. Cicalla, 59 280 State vs. James, 82 Mo. 509; Tenn. 508. Pence vs. Makepeace, 75 lad. 480; sss Worthy vs. Brower, 93 N. C. Thayer vs. Clark, 48 Barb. 243; 344 ; State vs. Brown, 80 Ind. 425. Brewester vs. Balch, 41 N. Y. Super. 28* Evans vs. Taylor, 60 Tex. 422. Ct. 63; Weber vs. North, 51 Iowa 285 Webb vs. Gross, 79 Me. 224; 9 375- 1 N. W. 652. Atl. 612; McKim vs. Bartlett, 129 But see Robinson vs. Hodge, 117 Mass. 226. Mass. 222. 281 Stanton vs. State, 82 Ind. 463; 378 THE LAW OF STJEETYgHIP. accounting of his trusty it was considered a breadi for whicli action would lie on the bond."'® §218. The scope of the administration bond covers all assets and equities of the estate. The law requires the administrator to faithfully administer the estate, and the bond covers all the requirements of the law except when restricted by words of special limitation. The undertaking covers all the assets, whether they come into the hands of the officer before, or after the execution of the bond."*' Even though the conversion takes place before the execution of the bond Ibe sureties will be liable. Thus, where sureties on motion were released from a bond and a new bond substituted, but the assets of the estate had been wasted before the execution of the last bond, it was held : " The discharge of this obligation required that the executor should administer the estate as required by the law and the will, or deliver it to his successor to be so administered, should he resign or be removed. The fact that prior to executing the bond he had converted the assets to bis own use, in no way affected the obligation to ac- count for all that had been received by him belonging to the estate; and it was to secure this obligation that the bond was required and given." "*' 286 Ellis vs. Johnson, 83 Wis. 394; against the sureties is limited to ■53 N. W. 691. money or property which actually By statute in Massaxjhusetts an comes into the hands of the admin- administrator of an insolvent estate istrator. Statements by the officer is required to make a representation in his reports to the court, charging of that faot to the Probate Court. himself with assets which he never Where su(Sh an administrator failed received, will not be conclusive of to file an inventory or account and the fact against the sureties. State permitted a creditor to obtain a vs. Elliott, 157 Mo. 609; 57 S. W. judgment which remained unsatis- 1087. •fled, it was held to be a breach of ass Foster, Admx., vs. Wise, the bond rendering the sureties Admr., 46 O. S. 26; 16 N. E. 687. liable to the full extent of the claim The surety against whom recovery of the creditor, notwithstanding the was had in this case subsequently decetised may have in fact leS; no brought a claim against the sureties estate. Mclntyre vs. Parker, 80 N. of the former bond which was in E. 798; 196 Mass. 155; Forbes vs. force at the time the devastavit oc- McHugh, 152 Mass. 412; 25 N. E. curred, and it was held that as _be- 622. tween the different sets of sureties, 287 Choate vs. Arrington, llfi the entire burden should f'T, People vs. Pacific Surety Co., 130 signment of Richart, 58 111. App. "^ 91; Johnson vs. Hogan, 37 Tex. 77; S2i Cmnmonwealth vs. Rogers, 53 Court of Probate vs. Smith, 16 R. pj^ ^rjQ I. 444; 17 Atl. 56. The administra- 322 Goux vs. Moucla, 30 La. Ann. tor de bonis nou is in many States 743 ; State vs. Campbell, 10 Mo. specifically authorized by Statute to 724. , , „ -kt v maintain action on the bond. Tul- ''' Spe^ l^' ?^f°'^' hurt vs. Hollar, 102 N. C. 406; 9 S. ^"^^^^^l^^ "^Z 'vs. Oakley, 120 E. 430; Banks vs. Speers, 103 Ala. jj y. 84; 24 N. E. 306. JUDICIAL BOKDS. 387 ward, and his bond-is liable if such implied representation is not true. If he makes an improvident loan of moneys belonging to the trust fund, taking insufficient security, the bond will be charge- able.'" The guardian undertakes the responsibility for all the prop- erty belonging to the ward, whether derived from the estate of the ancestor of the ward or from any other source,*'"' and the sureties are liable, as in the case of an executor or an administra- tor,*^" even though the money or property comes into the hands of the guardian before the execution of the bond,*^^ and is con- verted in whole or in part prior to the date of the bond.*^* A special bond given by requirement of law to secure the pro- ceeds of a sale of land belonging to the ward, is not cumulative with the general bond of guardianship, neither will the genraral bond be liable for conversions of the special fund.*^° 32* Eiehardaon vs. Boynton, 12 Allen 138; Lee vs. Lee, 67 Ala, 406. In this case it was held that the sureties are liable for loans made without security, even though the borrower was entirely solvent at the time the loan was made. See also Bell vs. Rudolph, 70 Miss. 234; 12 South. 153. 325 Carr vs. Askew, 94 N. C. 194. 328 Ante Sec. 235. 327Merrells vs. Phelps, 34 Conn. 109; Bockenstead vs. Perkins, 73 Iowa 23; 34 N. W. 488; Knox vs. Kearns, 73 Iowa 2S6; 34 N. W. 861; State vs. Bilby, 50 Mo. App. 162. S28 Douglass vs. Kesaler, 57 Iowa 63; 10 N. W. 313; Fogarty vs. Beam, 100 111. 366. Contra — State vs. Shackleford, S6' Miss. 648. In Aetna Indemnity Co. vs. State, 101 Miss. 703; 57 So. 9«0, it was held that where a guardian, while acting under his first bond, con- verted moneys of his ward, and after the discharge of the first bond, and the giving of a new bond, though then solvent and able to piy the amount convertel, neglected to pay such amount to himself as guardian for the use of the ward, there wns a breach of the second bond as well as of the first. 329M. Contra — Mason vs. Terrell, 3 Ga. 279 ; Beasley vs. State, 53 Ark. 67 ; App. 348 ; 60 S. E. 4. 13 S. W. 733; State vs. Brown, 16 365 Littleton vs. State, 46 Ark. Iowa 314. 413. 362 Ramey vs. Coimn., 83 Kyi 534. assi U. S. vs. Du Faur, 187 Fed. 383 Davis vs. South Carolina, 107 812; 109 C. C. A. 572; People vs. U. S. 597; 2 S. Ct. 636. Rubright, 160 111. App. 528. 384 United States vs. Evans, 2 366 viaa vs. Ck>mm., 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; He^er vs. State, 15 was filed was declared void. Tex. App. 418; Lee vs. State, 25 See also Hodges vs. State, 20 Tex Tex. App. 331; 8 S. W. 277; Fried- 493. line vs. State, 93 Ind. 3i66 ; Harris 367 'State vs. Adams, 40 Tenn. 259 ■ vs. State, 60 Ark. 209; 29 S. W. State va. .Crowley, 60 Me. 103 ; Stat^ 640; Sliarpe vs. Smith,- 59 Ga. 707; vs. Cobb, 71 Me. 198. State vs. Poeton, 63 Mo. 521; State But see Durein vs. State, 38 Kan. vs. Sureties of Krohne, 4 Wyo. 347; 485; 17 Pac. 49; Turner vs. State' 34 Pac. 3. 14 Tex. App. 168. ' 396 THE LAW OF SUEETTSHIP. 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 whidi 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- 3«8 Hopton vs. State, 30 Tex. 191 ; Littlefleld vs. State, 1 Tex. App. 722; Waters vs. People, 4 Ool. App. 97; 35 Pac. 56; State vs. Wooten, 4 La. Ann. 515; Sdmpson vs. Ooman., 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 ax:- . 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 undei'taking of bail, nor does it bear materially upon the obliga- tion." SOS State vs. Merrihew, 47 Iowa 112; People vs. Dennis, 4 Mich. 609; Territory of Oklahoma vs. Conner, 17 Okl. 135; 87 Pac. 591; State vs. O'Keefe, 108 Pac. 2; 32 Nev. 331; Marmaduke vs. People, 101 Pac. 337; 45 Ool. 357; Territory vs. Minter, 88 Pac. 1130. 370 Reese vs. People, 11 111. App. 346; State vs. Fomo, 14 La. Ann. 450; Draughan vs. State, 35 Tex. Or. Eep. 51; 35 S. W. 667. Gray vs. State, 43 Ala. A. In this case the recognizance was to answer the char;ge of perjury, and the indictment was for burglary. Addison vs. State, 14 Tex. Crim. App. 568, where the recognizance was for theft and the indictment for swindling. Contra — People vs. Metcham, 74 111. 292. 371 Mudd vs. Comm., 14 Ky. L. Eep. 672. See also Oomm. vs. Teevens, 143 Mass. 210; 9 N. E. 524; State vs. Bryant, 55 Iowa 451; 8 N. W. 303; Murray vs. People, 111 Pac. 711; 49 Colo. 109. 37=Tousey vs. State, 8 Tex. 173. 373 State vs. Ridgley, 10 La. Ann. 302. 374 Ciravey vs. State, 26 Tex. App. 84; 9 S. W. 62. See also Woods vs. State, 103 S. W. 89S; 51 Tex. Or. App. 595; Martin vs. State, 145 S. W. 916. JUDICIAL BONDS. 397 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 court.'^° 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 answer the charge.*''' It was held that a subsequent appearance and trial will release the sureties from the technical forfeiture.*''' It is no defense that the prosecuting attorney consented to the departure of the accused from the state and promised to dismiss the case at the next term, as such agreement is beyond his authority and will not be binding on his successor in office.*"" §232. 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 made 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 375 Champlain vs. People, 2 N. Y. Comm., 14 Ky. L. Eep. 203. 82. "After the disoharge of the 37« Hangsleben vs. People, 89 111. grand jury, prisoners charged with 1/64; State vs. Scott, 20 Iowa ©3; offenses and not indicted are not State vs. Emily, 2'4 Iowa 24; State entitled to be set at liberty, if satis- vs. MoGuire; 16 E. I. aW; 17 Atl. ■ factory cause be shown for detaining Srl'8 ; Lee vs. State, 25 Tex. App. SaP; them in custody, until the meeting 8 S. W. 277 ; Sproat vs. Ctomm., 4 of the next grand jury. Under like Ky. L. Eep. 629 ; State vs. Drake, circumstances, persons out on bail 4aOkj. 538; 139 Pac. 976. are continued under recognizance 377 Bearden vs. State, 80' Ala. 211 ; when not discharged. 7 South. 735 ; State vs. Bumham, 44 "It is necessary, for the most db- Me. 27<8; State vs. Schexneider, 45 vious reasons, that this power of de- La. Ann. 1445; 14 South. 250; Mc- tention ^ould exist and be ocoa- Ardle vs. MeDaniel, 75 Ga. 270. sionally exercised. Offenders would Co-n *»-(i—-iSproat vs. Common- otherwise frequently escape punish^ wealth, 4 Ky. L. Eep. ©29. ment, by the sickness or unavoidable 377o Husbands vs. Commonwealth, absence of a material witness, while 14'3 Ky. 290; 136 S. W. i632. the gland jury was sitting, and by See also 'Cameron vs. Burger, 120 various other accidental causes." Pac. 10; 60 Or. 4!5i8; Tanquary vs. See also State vs. Kyle, 99 Ala. People, 25 Col. App. 531 ■ 139 Pac 25«; 13 South. 938; MdCoy vs. 1118. State, 37 Texas. 219; State vs. Mill- 37s Boswell vs. Colquitt, 78 Ga. saps, 69 Mo. 359; Mooney vs. Peo- 63; Kellogg vs. State, 4,3 Miss. 57 pie, 81 111. 134; Hinkson vs. 398 THE LAW OF SUEETTSHIP. arrest and commitmeiit, 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 surety 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- 379 State vs. Cunningham, 10 DJa. needed. It is likened to the re-ar- Ann 3'93; State vs. Lingerfelt, 109 rest by the sheriff of an escaping N. C. 7T5; 14 S. E. 75; Carr vs. prisoner." Sutton, 70 W. Va. 417 ; 74 S. E. 239. ^^o Sternberg vs. State, 42 Ark. Taylor vs. Taintor, 16 Wall. 371. 127. " When bail is given, the principal But see Eamey vs. Comm., 83 Ky. is regarded as delivered to the cus- 534. tody of his sureties. Their domin- ^'^ People vs. Robb, 98 Mich. 397 ; ion is a continuance of the original 57 N. W. 257. imprisonment. Whenever they ^82 People vs. McBeynolds, 102 choose to do so, they may seize him Cal. 308; 36 Pac. 590. and deliver him up in their dis- ^ss Smith vs. Kitchens, 51 Ga. charge; and if that cannot be done 158; State vs. Orsler, 48 Iowa 343; at once, they may imprison him un- Medlin vs. Comm., 74 Ky. 605; Rob- til it can be done. They may exer- erts vs. State, 22 Tex. App. 64; 2 S, cise their rights in person or by W. 622. agent. They may pursue him into ssiMcGuire vs. Comm., 7 Ky. L. another State; may arrest him on Rep. 287; Hartley vs. Colquitt, 72 the Sabbath; and, if necessary, may Ga. 351. break and enter his house for that But see Smith vs. State, 12 Neb. purpose. The seizure is not made 309; 11 N. W. 317. by virtue of new process. None is JtmiCIAL BONDS. 399 gation of the bail bond/'" even though death occurs after for- feitura"" The arrest of the principal while out on bail and his oor- 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 the law of the 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- ass pynes vs. state, 43. Ala. 52; People vs. Meyer, 29 N. Y. iSupp. 114?; Conner vs. State, 50 Tex. 84. 388 State vs. MdNeal, 18 N. J. L. 33; State vs. Cone, 32 Ga. 668; Mather vs. People, 12 111. 9; Wool- folk vs. State, 10 Ind. 532. 387 Taylor vs. Taintor, 16 Wall. 366. The principal was Eulmitted to bail in Connecticut and \pent into the state of New York where he was arrested and taken by requisition proceedings to the state of Maine and there sentenced to a long term in the penitentiary. In an action ota. the bond it was held — Swayne, J.: "It is the settled law of this class of cases 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 principa' dies before the day of performance, the case is within the first category. Where the court be- fore whidh 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 gOTCmor, upon the requisition of the governor of another State, it is within the third It is equal- ly well settled that if the imposai- oility 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 ''mpossible, and therefore ex- cuses failure, mxist be a law opera- tive in the State where the obliga- tion was assumed, and obligatory in its effect upon her authoirlties. 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 Mm or his sureties. Such is now the settlied rule." See also Ingram vs. State, 27 Ala. 17; Cain vs. State, 65 Ala. 170; State vs. Horn, 70 Mo. 466; Yar- brough vs. Comm., S& Ky. 151; IB S. W. 153; King vs. State, 18 Neb. 375; 2!5 N. W. 519; U. S. m Mar- fin, I7ft Fed. 476. A statute -provided as one of the defenses against forfeiture of a bait bond, as follows: "The sickness of the principal or some uncontrollaible circumstance which prevented his appearance at court, and it must in every such case be shown that hia failure to appear arose from no fault on hi? part " It was held that the fact that the principal was at the time m custody on a similar dharge in another county was a legal de- fense to a forfeiture of his bail bond. Wood vs. State, 103 S. W. 895; 51 Tex. Civ. App. 595; State vs. Fvnk, 127 N. W. 722; 20 N. I>. 14>5; State vs. Row, 89 Iowa 58il- m N. W. 306; People vs. Robb, 98 Mich. 397; 57 N. W. 2B7. See also Moore vs. 'State, 106 S. W. 3S8. 388 People vs. Moore, 4 N. Y. Cr Eep. 205; State vs. AUen, 21 Ttenn 258. 400 THE lAW OF SUEETYSHIP. ties.^^° The sureties will be exonerated by the fact that the principal has been adjudged a lunatic and confined in an asylum.^'" Where the accused voluntarily places himself under military jurisdiction by enlisting in the army and thereby is placed beyond the reach of the process of the civil authorities, the sureties upon his bond will nevertheless be liable for his non- appearance.*"^ 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 con- viction he escapes, the bond will be forfeited.'"^ Where accused appears and pleads guilty and sentence is pronounced, he ceases to be in the custody of the bail and the sureties are discharged by operation of law.''^" Nor can they be again bound by the subsequent vacation of the judgment and the granting of a new trial.*""* 389 Coram, vs. Overby, 80 Ky. 208. Coid consideiration 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 premiimi 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 premiunL, neither can the contract be revoked on that account.* 2 Walker vs. Holtzelaw, 57 S. C. not be considered in detennming 499; 35 S. E. 754. "Upon the hear- his rights." See also Baglin vs. ing of the ease it was argued that a Southern Surety Co., 41 App. D. surety is a, favorite of the laiw, and C. 930. it (the policy) should be strictly 3 A surety company can avail it- construed in his favor. While this self of the provisions of Statute, amd is true as a general rule, it has no withdraw from judicial and official- application to a case like this, where bonds in cases vp(here good cause is the surety receives compensation shown, and it is held that the fail- and the surSt^h-ip is in the line of ure to pay the premium is a good its regular business." groumd for extending the relief ai- 2a Lewis Admr. vs. United States forded by the Statute, but such Fidelity and Guaranty Co., 144 Ky. remedy is not based upon a failure 436; 138 S. W. 303. "We are cited of the consideration, but rests in the to no authority from any court of discretion of the court and will be last resort denying to a surety the applied as a protective measure in right to subrogation because he was favor of a corporate surety, a compensated or paid surety. Sub- Amer. Surety Co. vs. Thurber, 1162 rogation is allowed because the surety N. Y. 2*4; 56 N. E. 6311. "iSUrety has paid the debt of his principal. conLpanies are a convenience to the Upon this ground the right rests. community, and it is important that The question as to what induced the they should continue sound and able surety to assume the obligation can to respond to their obligations. The 412 THB IiAW OF SUEETYSHIP. The consideration in all suretyship contracts, whether com- pensated or not, springs from tie 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 the Surety Company, but is not the essential consideration out of which the contract gi'ows. ^237. Corporate compensated suretyship is within the statutes of frauds. The contract of the surety corporation although compensated is Avithin 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 perfoimanee 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 wpuld son, 77 Minn. 402; 80 N. W. 300. continue with no compensation, as Where it was held that a failure by 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 COEPOEATE SUEETTSHIP. 413 But the payment of a premium as an inducsement 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 which he secures. §238. 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 be 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 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. ° "Ulster Co. Savings Inst. vs. terpreted by the same rules which Young, 161 N. Y. 23; 55 N. B. 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 414 THE LAW OF SUBETTSHIP. 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 heing wholly separate and distinct from his own affairs, he gives the business no attention and relies for his pro- tection on the rules of strict construction heing 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 contiact 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. Hence, 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." COEPOEATB SUEETTSHIP. 415 it was held " if, looking at all its provisions, the bond is fairly and reasonably susceptible of two constructions, one favorable to the bank and the other favorable to the Surety Company, the former, if consistent with the objects for which the bond was given, must be adopted, and this for the reason that the instru- ment which the court is invited to interpret was drawn by the attorneys, officers or agents of the Surety Company Aa said by Lord St. Leonards, "It (a life policy) is of course prepared by the company and if therefore there should be any ambiguity in it, it must be taken, according to the law, most strongly against the person who prepared it." * eAnte Sec. 233. American Surety Co. vs. Pauly, 170 U iS. 153; 18 S. Ct. '552. See also Supreme Council vs. Fi- delity & Casualty Co., 63 Fed. Rep. 48. "Tlie bond is in the terms pre- scribed by the surety, and any doubtful language should be oon- istrued most strongly against the •surety, and in favor of the indem- nity which the assured had reason- able grounds to exnect." To the same effect see Bank of Tarboro vs. Fidelity & Deposit Oo., 138 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 ewer 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 contract most strongly against the insurer, ■results in this case wholly from the form of the contract wherein the details of every right of the surety are fully set out in the writing, and is in no respect a deduction from the fact that the surety is corporate and compensated. A private surety making the some 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 con- 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 faxit intended otherwise by the in- surer, the policy will be construed in favor of the assured." (See also Brown vs. Title Guaranty and Surety Co., 232 Pa. 387; 87 Atl. ^lO, which states the rule thus: "The appellant is engaged in the business of becoming surety. It as- sumes its undertakings for a con- sideration, and the rute of strict- issimi juris which applies to an individual suirety is relaxed as to it. The trend of all om- modern deci- sions, Federal and State, is to dis- tinguish between individual and Cor- porate Suretyship, where the latter is an undertaking for money con- sideration by a company chartered for the conduct of such business, in the oaie case the rule of strictissimi juris prevails, as it always has; with respect to the other, because it is essentiallv an insurance against risk, underwritten for a money con- sideration, by a corporation adopt- ing such business for its own profit, the courts generally hold that such a company can be relieved from' its 416 THE DAW OP SURETYSHIP. 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, resulting in the rule of strict construction against the Corporate Surety in the matter of the interpreta- tion of the meaning of the contract.'" §239. Surety company bonds as affected by the special stipula- 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 condition in the bond as to give the surety, and the principal whose contract he secures, all the benefits of the arrangement without imposing the burdens. obligation for am-etyahip only where essential particulars that of insur- a departure from the contract is an.e. Their contracts are usually shown to be a material variance. in .he terms prescribed by them- . . . While such corporations selves, and should be construed most may call themselves 'Surety Ctom- strictl/ in favor of the obligee." panies,' their business is in all saAJn'e See. 2'33. CORPORATE SURETYSHIP. 417 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 eommcn 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 has spe- cifically contracted for a forfeiture. But any condition, clearly expressed and not opposed to public policy is valid and will be enforced."* §240. Seine 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 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 eases an evasive one and will not be enforced. It puts upon the ob- ligee not merely the duties of observing closely the conduct of the principal, but in addition thereto, charges him with 66 Livingston vs. Fidelity and De- ualty Co., 98 Ky. 568; 33 S. W. posit Co., 76 O. S. 253 ; 81 N. E. 330 ; 828 ; United States Fidelity & Guar- IssaquaJi Coal Co. vs. United States anty Go. vs. First Na,t. Bank (111.), Fidelity & Guaranty Co., 126 Fed. 84 N. E. OTO; Title Guaranty & ®9; Adeliberg vs. United States Fi- Surety Co. vs. Schmidt, 213 Fed. delity & Guaranty Co., 90 N. Y. 199; Baglin vs. Southern Surety Supp. 495; Union Central Life In- Co., 41 App. D. C. 530. suranoe Co. vs. United States Fi- ' Ante See. 68. delity & Guaranty Co., 99 Md. 423; 7»In School District vs. The o8 Atl. 437 ; Dorsey vs. Fidelity & Massachusetts Bonding Co., 92 Kan. Casualty Co., '98 Ga. 456; 2i5 S. E. 53, it was held that this condition 521 ; Sinclair vs. National Surety vrould not be enforced in the absence Co., 132 la. 549; 107 N. W. 1814; of proof tha,t the surety company De Jemette vs. Fidelity and Oas- was injured by lack of such notioew 418 THE LAW or SUEETYSIIIP. the duty of determining tiie character of the acts of the princi- pal, and the probability that a line of conduct apparently inno>. cent may be fraudulent. Such 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 boimd 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 less charged against the bond. It cannot, however, be extended so as to relieve the obligee from the duty of giving laotice 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 imder 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 eions of frauds but he was not bank had knowledge, not simply sus- bound to act until he had acquired pieion, 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; jBtna Life Ins. Co. vs. error in these instructions. They Amer. Surety Co., 34 Fed. Rep. 2i9'l; are entirely consistent with the Fidelity & Guaranty Co. vs. Western terms of the contract. Much stress Bank, 29 Ky. L. E. 639 ; 94 S. W. 2. was laid, in argument, upon the » Pacific Fire Ins. Co. vs. Pacific Surety Co., .93 CaJ. 7; 2i8 Pac. 84B. COItPOEATE SUEETYSHIP. 419 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, without 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.^^ 10 Guarantee Co. of N. A. vs. The had admonished it of the probability Mechanics Savings Bank & Trust that speculation or gambling would Co., 183 U. S. 402. lead to acts involving loss for which Reversing The U. S. Circuit Court it would be responsible. .... The of Appeals, 80 Fed. Bep. 766. provisions intended to protect the Fuller, 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' notified 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 "Ante Sec. 107. guard against because experience 420 THE LAW OP SUEETYSHIP. 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 diligence.^'' §241. 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 conductsd 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 com- ply with this requirement 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. E. 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; 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 Redwine 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 Redwine had become pie as applied to corporate sureties, untrustworthy, but as to this matter Insurance Co. vs. McGfookey, 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 Redwine would remain ger vs. Insurance Co., 7 Wall. 386. COEPOEATE SUEETYSHIP. 421 But such condition will not be enforced where 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 the Receiver 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." §242. 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 moT-eys 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 amount 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. 1* Jackson vs. Fidelity & Casualty Co., 75 Fed. Eep. 359. 422 THE LAW OF SUEBTYSHIP. Such provision in iihe 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. Sc^ also, according to the weight of authority, is an agreement, made at the time of contracting a debt, 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 ovsm. 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 owi: 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. Nor 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 it^ existr ence and extent Such an agreement is clearly against public policy." " §243. 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 IB Fidelity &, Casualty Co. ts. 351; Fidelity & Casualty Co. va. Biohhoff, 63 Minn. 170; 65 N. W. Crays, 76 Minn. 450; 79 N. W. 53L COEPORATB STJEETYSHIP. 423 contract is collateral, otherwise the undertaking that anolter 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 engagement even though he has been paid a premiimi- 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 own, 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 ease. This familiar rule of private suretyship was applied to a eon- 424 THE I/AW OF SURETYSHIP. tract of compensated surety, in a ease where the hond 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.^" i§243a. Joint control of trust funds. The stipulation in surety bonds that trust funds shall be deposited in a bank named by the surety and drawn out only upon checks countersigned by the surety, so far as it applies to trusts created by law, such as receivers, administrators, guardian, assignees, or any trustee appointed by the Court is against public policy and void. An officer of the Court is chargeable with the custody and control of all property coming to him as such officer and has no authority to delegate this control to another. The ruling in England and the United States upon this subject has been stated thus: "A receiver cannot be permitted to enter into any agree- ment with his sureties by which he in effect indemnifies them against any loss that may accrue from his dealing with the receivership fund. The security for his good conduct must not be worked out of the estate itself. Nor can he be per- mitted to put the fund entrusted to his care under their con- trol, or the control of any person appointed by them, but must retain the complete control over it in himself, so as to be able to act with promptitude on any emergency."" iBMriCanna & Fraser Co. vs. Oiti- pacity, and it was held that since zens' Trust & iSurety 'Co., 74 Fed. there was no subsisting obligation Bep. 587. running to him as an individual See also Electric Appliance Co. that the collateral undertaking of vs. XJ. S. Fidelity & Guaranty Co., the surety must be discharged. The 110 Wis. 4)34; 85 N. W. 638; Amer. holding in this case is not affected (Surety Co. vs. United States, 127 by the fact that the surety was Ala. 3419; 28 South. 664. coi-norate atid compensated, but the Fidelitv & Deoosit Co. vs. Singer, rulin? awjlies to anv surpty. 60 Atl. Rep. 518. In this ease the i' White vs. Baugh. 3 Clark & F. action was in reolevin. and t^e bond 44. 9 BliQrh N. K. 181. See also was made to Singer in his individual P'delity & Deoosit Co. vs. Butler, capacity, whereas the title to the 130 Ga. 225, 60 S. E. 851. property was in him in a. trust ca- CHAPTER IX. Sec. 2-44. See. 2*5. Sec. 246. Sec. 347. See. 248. See. 249. 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 Xot be Applied Against the Legal Eights of Others Dealmg ^^':th 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. 2150. A Suretyship Promisor Who Pays Will be Subrogated tc any Mortgage Security which the Creditors Holds for the Debt. Subrogation Applies to One in the Situation of a Surety. Surety Who Pays the Debt is Entitled to be Subrogated to a Pro Rata Share of any Dividend which is Derived from the Assets of the Principal. Subrogation Among Co-sureties. Subrogation Between Successive Sureties. Subrogation in Favor of the Creditor to Securities Held by the (Surety. iSame Subject — The View of the English Courts. Remedies of the Surety in Cases Where He is Deprived of Sub- rogation by Act of the Creditor. When. Surety Will be Subrogated to the Principals' Claims of Set-off Against the Creditor. Sec. 2159. Subrogation not Available to One Who Pays the Debt of An- other as a Mere Volunteer. See. 260. Coinventional Subrogation. Sec. 2I6L Waivter of Subrogation. Sec. 262'. Oontribution Between Co-sureties — General Principles. Sec. 263. Contribution Between Sureties Bound by Different Instruments. See. 2164. A Surety for a Surety Not (Liable in Oontribution. Sec. 26'5. 'Contribution as Affected by Special Contract Between Sureties. Sec. 266. Contribution Between Persons in the Situation of a Surety. •Sec. 267. One Who Becomes Surety at the Request of a Co-surety is lialble in Oomtribution to such Co-surety. 425 ' Sec. 25i. See. 252. Sec. 253. Sec. 254. Sec 25o. See. 256. See. 257. See. 258. 426 THE LAW OF SURETYSHIP. Sec. 268. One Who Aids in the Commission of the Default is Barred from the Right of Contribution. Sec. 269. When Contribution May be Enforced. Sec. 270. Equitable Contribution or the Eight of a Surety to Call Upon His Co-surety for Exoneration Before Payment. Sec. 271. Amount Eecoverable in Contribution. Sec. 272. Contribution as Affected by the Insolvency of One or More ^ pfO-sureties. Sec. 373. Contribution as Affected by Absence from the Jurisdiction or by'^he Death of a Co-surety. Sec. 274. Surety Seeking Contribution Must Account to His Co-sureties for Indemnity Furnished Him by the Principal. Sec. 275. Surety May Enforce Contribution, Even Though Payment by Him was Without Compulsion. Sec. 27«. Contribution as Affected by the Release of One of Several Co-sureties. Sec. 277. Bankruptcy of a Surety — Effect on Co-surety's Eight of Con- tribution. See. 278. Contribution Between Parties to Bills and Notes. Siec. 279. The Right of Indemnity Against the Principal. Sec. 280. When Right of Indemnity Arises. Sec. 2!81. Equitable Exoneration. Sec. 282. Eight of Indemnity Arises from Payment or Transactions Equivalent to Payment. Sec. 283. Amount Eecoverable by Indemnity Proceedings. Sec. 284. Eight of Indemnity as Affected by the Non-liability oif the Principal. Sec. 285. Eight of Indemnity as Affected by the Non-liability d the Surety or Guarantor. Sec. 286. Whem Judgment Against the Surety or Guarantor is Conclusive as to the Eight to Recover Indemnity. Sec. 287. Indemnity as Affected by the Bankruptcy of the Principal. §244. Subrogation. Subrogation in Suretyship is "a mode which equity adopts to compel the ultimate discharge of the debt by him 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 consists 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 McOormick vs. Irwia, 3i5 Pa. 117; Lewis' Admr. vs. U. S. F. & G. Co., 138 S. W. 303; 144 Ky. 425. BIOHTS AITD BEMBDIES. (127 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 -Hodgson vs. Shaw, 3 Myl. & K. 183, Lord Brcnigham: "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 imr ported into any transaction, and so to raise a contract by implication. .... 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 securities 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, Kenf. 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 eaforoe ©very 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 surely stands not upon contract, but upon the same principal of natural justice upon which one surety is entitled to contribution from another." Mathews vs. Aikin, 1 N. Y. 5flB, Johnson, J.: "1 agree fully with the learned judge who delivered the opinion of the Supreme Ct)urt, 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 upon 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 principles of natural justice." Robertson vs. Sullivan, 59 go. 846; 102 Miss. 581. sGaskill vs. Wales, 36 N. J. Eq. 527; Cockrum vs. West, 122 Ind. 372; 23 N. E. 140; Murray vs. CBrion, 105 Pac. 840; Lackawanna Trust & Safe Deposit Co., vs. Gome- ringer, 296 Pa. 179; 84 Atl. 757. 428 THE LAW OF STJEETYSHIP. 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 time 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 oould 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- Arnold vs. Green, 116 N. Y. 566; curity. According to the well-es- 23 N. B. 1, Vann, J. : " This appeal tablished principles upon which the presents the single question whether, ^doctrine of equitable assignment by Tinder 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- b 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. Cassidy, 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 AN0 REMEDIES. 429 of the claim, equity dispenses with the formality of the as- signment in eases 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 application/ 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." d^tor, or any co-aurety, co-contraet- or, or oo-d'ebtor, 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 cr 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-delbtor, by the means aforesaid, more than the just proportion to which, as be- ttreen those parties themselves, such la&t-mentioned person shall he justly liable." » Lewis vs Palmer, 28 N. Y. 2T1: iState Bank vs. Smith, 155 N. Y. 185; 49 N. E. 680; Billings vs. ■Sprag-ue, 49 111. 509-; Beaver vs. Slanlcer, 94 111. 175; Young vs. Vough, 23 N. J. Eq. 32.5-; Klopp vs. Lebanon Bank, 46 Pa. 88; Fawcetts vs. Kimmey, 33 Ala. 2'Sl; Torp vs. Gulseth, 37 Minn. 135; 3:3 N. W. 550; Allison vs. Sutherlin, 60 Mo. 274; iScribner vs. Adams, 73 Me. 541; Guthrie vs. Bay, 36 Neb. 6'12; en Southern Cotton Oil Co. vs. Napoleon Hill Cotton Co., 158 S. W. 1082; 108 Ark. 55o. 7 Acer vs. Hotchkias, 97 N. Y. 402, FHnch, J.: "The doctrine ol 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, c. 9?r, 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 entitlfed 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 stard in the place of the creditor and to use all the rem- edies, and, if need be, and upon a prop"(Tenn.) 93. , It is held that an accominodation- aceeptor of a- bill, while a, principal debtor as to the holder, is » 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. « Jefferson vs. Edrington, 53 Ark. 5145; 14 iS. W. 903; Fitcher vs. Griffiths, 103 N. E. 471. BoOhmer vs. Boyer, 89 Ala. 27'3; 7 South. 963. SI Greenlaw vs. Pettit, 87 Tcim. 467; 11 S. W. 357; The Hattie M. Spraker, Z9 Fed. Eep. 457. In this case 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 O. S. 577; 16 N. E. 475. In this ease 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 against 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 tlie 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 284; 20 Pac. 429; McCready vs. Van Antwerp, 24 Hun 322. 450 THE LAW OF SUEETTSHIP. §252. 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 lie 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 amoimt 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. 7d. 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 liie 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." "' B^Bardwell vs. Lydall, 7 Bing. See also Gray vs. Seckham, K E i489. 7 Ch. App. 680. EIGHTS AND EEMEDIES. 451 A similar question also arises in bankruptcy proceedings where the claim is in part secured by a surety, 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 co-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 amount 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 Sec. 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- »on, 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 o^ln re Baxter & Ralston, 18 N. •hall be subrogated to that extent to B. R. 497. the rights of the creditor." 64 Pace 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. 452 THE LAW OF STJEETYSHIP. 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 debt, 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 ac- count of the collateral until he is paid in full.°^ Such right in But see New Bedford Institution for Savings vs. Hathaway, 134 Mass. 69. 65 Chemical Bank vs. Armstrong, 59 Fed. Rep. 372. Taft, J.: " In Massachusetts (Amory v. PranciSj 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 Trasch, 31 Pac. 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 Russ. & M. 185. In Amory v. Francis, supra. Chief Justice Park- er repudiates this view that the se- cured creditor should be allowed to prove for his full claim, without de- duction 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 incqrrectly 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 view 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 cases 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 prove for his full claim against an insolvent es- tate. Greenwood v. Taylor was questioned by Lord Gottenham 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 tJ. S. 618. In this countiy^ the Massachusetts doctrine was dis- sented from by the Supreme Court of EIGHTS AITD EEMEUIES. AX tlie creditor carries a corresponding right to a surety in the application of the doctrine of subrogation. , §253. Subrogation among co-sureties. 'So 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 trustee for his co-surety. The taking of such indemnity from the principal lessens his ' Jfew HampsMre in the early case of Moaes vs. Eanlet, 2 N. H. 488. Other oases which fully support the views we ha'v>e expressed are: People vs. E. Remington & Sons, 121 N. Y. 33i6; 24 N. E. 793; In re Bates, IIS 111. 524; 9 N. E. 257; Findlay vs. Hosmer, 2 Conn. 350; Logan vs. An- derson, 18 B. Mon. (Ky.) 114; Bank vs. Patterson, 78 Ky. 20'1 ; Brown vs. Bank, 79, N. C. 244; Kellogg vs. Mil- ler, 22 Or. 403 ; 30 Pac. 220 ; I'.Iiller's Estate, 82 Pa. St. 113; GraefTs- Ap- peal, 79 Pa. St. 146; Patten's Ap- peal', 45 Pa. St. 151; Miller's Ap- • peal, 33 Pa. St. 481.; Allen vs. Dan- ielson, 15 R. I. 480, 8 Atl. 705 ; Bank vs. Haug, 82 Mich, 607, 47 N. W, 33 ; West vs. Bank, 1'9' Vt. 403. Com- pare, also, Kortlander vs. Elston, 2 C. C. A. 657, 62 Fed. 180; Bank Cases, 9ZTenn.437, 21 S. W. 107O. "The exact point which, is common to all the foregoing authorities, and Which they all sustain, is that a creditor who has prOTCd his claim against an insolvent estate under administration can collect his divi- dends without any deduction from his claim as proven for coUectJona made from collateral after his proof of claim is filed." 58 Lidderdale vs. Kobinson, 2 Brock. 15'9; Shaeffer vs. Clendenin, 100 Pa. 5i65 ; Nally vs. Long, 56 Md. 567; Pishbaok vs. Weaver, 34 Ark. SW; Hartwell vs. Whitman, 36. Ala. 712; Scrihner vs. Adams, 73 Me. 341 ; Fuller vs. Hapgood, 39 Vt. 617; Eeinhart vs. Johnson, 62 Iowa li5S; 17 N. W- 452 ; Nteely vs. Bee, 32 W. Va. 519; 9 S. E. 8198; People's Bank vs. Miller, 85 Kan. 272; lli6 Pac. 884. But see Assets Realization Co. vs. American Bonding Co. et al., 88 0. S. 21'6, L02 N. E. 719, holding that where several sureties are bound by separate instruments on account of the same principal with limited liability as to each, the rela- tion of co-surety does not exist aiid on this account collateral deposited with one does not inure to the bene- fit of the others. See also German Amer. Savings Bank vs. Fritz, 68 Wis. 3190; 32 N W. 123. 454 THE LAW OF SUiSETYSHIP. ability to pay, and it would be a fraud upon his co-sureties to permit him 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 not apply, and such indemnity need not be shared with the other sureties/' §254. 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 his 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 ia already bound as a surety, or where bonds are given in the pros- ecution of legal remedies in the Appellate Courts in which successive undertalcings 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. '1 Carpenter vs. Kelly, 9 O. 106. in their management. He may not Lane, C. 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 107 Ind. 266 ; 7 N. E. 593 ; Owen vs. trustee for his co-sureties, because McGehee, 61 Ala. 440; National' they inure to their common benefit, Bajik of Commerce vs. Stehirm, 9 and he is bound by the obligations CaX. App. 6C6; 86 Pac. 981; Baber which attach to a trustee to use hon- ^^- Hanie 80 S. E. 57. „*„ J r -i.!. J J J- i- osLeffgett vs. McClelland, 39 0. eaty, good faith, and due discretion, a am B8 Ante fiec. 158. BIGHTS AND BBMKDIES. 455 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."^ «o Brandenburg vs. Flynn, 12 B. first suretyship was that of a Mon. (Ky.) 397. guaranty upon a lease, and the eiAnte Sec. 246. second was an appeal from a J'itzpatriek'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 eon 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 F: 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 4&6 THE LAW .OF SUEETTSHIP. JThere, 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) that 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, however, that in the case of successive sureties, whq 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 case 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 contingent, 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 th» 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 i8 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. Saving intervened as a volunteet and by his interposition stayed pro- ceedings on the judgment for pos- tession 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 has no application to the facts of this case. An earlier case in. Indiana seems EIGHTS AND EEMEDIES. 457 Without tlie intervention of tlie 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 Collins, his replevin bail for the pay- ment of the judgments rendered for said fines and costs, and having been lompelled 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 subrogktion 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 afSrmed, again 458 THE LAW OF SUBETYSHIP. merely because the right to require payment of the first surety 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 thugger V8. out of that favorite rule of equity Wright, 51 Ark. 232'; 1.1 S. W. ai*; that equality is equity. It is not Powell vs. Powell, 48 Cal. 234. at all founded upon the idea of con- lO'i Assets Realization Co. vs. tract between sureties, and may be American Bonding Co. et al., 818 O. invoked by the one against the other iS. 216; 102 N. E. 719. when he has been compelled to pay "o Rudolf vs. Malone, 104 Wis. for the principal debtor, although 470; 80 IST. W. 743; Cobb vs. without any knowledge down to the Haynes, 8 B. Mon. (Ky.) 137; Steiv^ time of payment or later that his ens vs. Tucker, 87 Ind. 109. co-surety has also obligated himself Bell vs. Jasper, 2 Ired. Eq. (N. to pay the same debt. ?ror will their C.) SOT. In this case the sureties beoouiing sureties at different times upon a guardian's bond for $10,000 and by different instruments with- asked to be released, which was done, out the knowledge of each other and a new bond of $5,000 executed, affect their liability to contribute a loss of $4,000 hajving occurred one to the other as co-sureties." while the first bond was in force, Bright vs. Lennon, 83 N. C. 183. which the first sureties paid, the 10* Armitage vs. Puliver, 37 N. Y. first sureties were allowed contrihu- 404 ; Jones vs. Blanton, 6 Ired. Eq. tion against the second for their pro (N. C.) 115; Young vs. Shunk, 30 rata share of the loss. Minn. 503; 10 N. W. 402; EUes- But see Burnett vs. Millsaps, 58 mere Brewing Co. vs. Cooper, 1 Q. Miss. 333, where it is held that the B. L. R. 75; Fidelity & Deposit Co. several sureties should contribute vs. Phillips, 84 Atl. 432. equally up to the amount of the 105 Hughes vs. Boone, 81 N. C. smaller bond. To the same effect see 204; Bergen vs. Stewart, 28 How. Cherry vs. Wilson, 78 N. C. 164. EIGHTS AND EEMEDIES. 479 ities are limited to a part of the sum secured. But if the under- takings are for distinct parts of the debt of the pidncipal, 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.*"" 107 Coope vs. Twynam, Turn. & Va. 121; Dunlap vs. Foster, 7 Ala. Russ. 426. In this case each bond 734. was for £400 and payable at different io» Oibson vs. Shehan, 5 App. D. periods, and neither surety was li- C. 391. This case was decided upon lable to the creditor for any part of the theory that since the indemnily 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 Arjc. an entirely different transaction, 73; Eosenbaum vs. Goodman, 78 and is not bound at all for the orig- 480 THE LAW OF SUEETYSHIP. §264. 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 not with them. The same is true of successive accommodation 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 accommodation 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 0. S. 486; 63 N. E. 73, in Hartsook, 83 Va. 679; 3 S. E. 289; ■which an apt criticism of Gibson vs. Baldwin vs. Fleming, 90 Ind. 177; ghehan (ubi supra) is made, where- Hanlsh 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 See. 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. B. 831. pleton, 60 S. W. (Tex. Civ. App.) EIGHTS .ANP REMEDIES. 481 blank, the presumption arises that the 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 the 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.*** §265. 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 Erauds. 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, "2Sayles vs. Sims, 73 N. Y. 551. Paschal, 70 Mo. App. 117; Sehram 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 O. 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. WerdehofF 14 surety. Wis. 18; Adams vs. Flanagan, 36 "sCraythorne 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. 482 THE LAW OF SUEETYSHIP, he in effect, promises to indemnify him against his liability as a surety for that part in excess of the amount agreed upon. Sueb promise of indemnity may be shown by parol.^^'' i Thus where a surety upon an official bond stipiflated 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 on&-half the default, and brought axjtion to recover from his co-surety xipon the parol agreement, the amount he had paid in excess of his agreement, it was held, " Co-aureties 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" ^" §266. 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."' iiB Thomas vs. Cook, 8 Barn. & See also Ante Sec. 32. Cr. 728; Wildes vs. Dudlow, E. E., nsRose vs. WoUenberg, 31 Ore- 19 Eq. 198 ; Guild vs. Conrad, L. R., gon, 269 ; 44 Pae. 382. 2 Q. B. Div. 885 ; Chapin vs. Merrill, See also Hoggatt vs. Thomas, 35 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't). S. Va. 64; 6 S. E. 619. 383; Barry vs. Ransom, 12 N. Y. n'McBride vs. Pottcr-Lovell Co., 462; Bald-Win vs. Fleming, 90 Ind. 169 Mass. 7; 47 N. E. 242. In this 177; Mansfield vs. Edwards, 136 case the several notes were in dif- Mass. 15. ferent sums and fell due at different MGHTS AND BEMEDIEB. 483 In those States wliere stockholders of a corporation are indi- vidually liable to assessment for the payment of oorporate debts, they are thus placed in the situation of a surety, and if one stockholder pays more than his proportionate share he is entitled to contribution from the others.^^* §267. 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 differences 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 were pledged and fell due and were several different parties have thua 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 n^BS. 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 "sUmsted vs. Buskirk, 17 0. S. parties selected u 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 Pao. 277. 484 THE LAW OP 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 the 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 making 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- 120 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 McKee vs. Campbell, 27 Mich. 497 Burnett vs. Millsaps, 59 Miss. 33-3 tShuford va. Cook, 80 6. E. 61. cover, but if he siofned at the request of the principal, though the request of the plaintiff was coupled with it, EIGHTS AND REMEDIES. 485 §268. 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 atr 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 oontribution 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 Tenn. 367; i2-'Eshleman vs. Bolenius, 144 Pa. 41 S. W. lO.'Sa. 269; 22 Atl. 758. But see Shepard vs. Pebbles, 38 123 Block vs. Estes, 92 Mo. 318; 4 Wis. 373. S. W. 731. 12* 2 B. & P. 270. See also Scofield vs. Gaskill, 60 las Ante Sec. 262. 486 THE LAW OF SUBETYSHIP. ruin, and the Court observed : " If these were circumstancea 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 loss ; 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." §269. When contribution may be enforced. 'No right of contribution arises in favor of a co-surety who pays no more than his ratable ^are of the common burden. If one of two sureties pays one-half of the debt, he caimot 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 laoDavies 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 O. 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 vs. Kuney, 19 either of the whole debt, or of that Oregon 71; 23 Pac. 661; Glasscock part of the debt which remains un- vs. Hamilton, 62 Tex. 143; Bushnell 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. Riiey, before that, he has no equity to re- 86 Va. 853; II S. E. 562. eeive a contribution, and consequent- EIGHTS AND BBMEDIBS. 487 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 axe 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 tte 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.*'' i2ea Stirling vs. Burdett, 2 Ch. 480 ; 35 S. E. 4018 ; Ryan vs. Krusor, 418. 76 Mo. App. 496; Nixon vs. Beard, 1" Stallworth vs. Preslar, 34 Ala. Ill Ind. 137; 12 X. E. ISil. 506; Boutin vs. Estell, I'lO Wis. Contra — Brisendine vs. Martin, 1 278; 85 N. W. 964. Ired. Law (X. C.) 286. 1=8 Mason vs. Tierron, 69 Wis. iso Owen vs. McGehee, 61 Ala. 440. 58'5; 34 N. W. 921; Yli&i vs. Wyck- isiStubbins vs. Mitchell, 82 Ky. off, 42 X. J. Eq. 642; 9 Atl. 679; 535. Parham vs. Green, 64 X. C. 436. '32jiorrison vs. Poyntz, 7 Dana It was held in Xeilson vs. Fry, (Ky.) 307; Poignard vs. Vernon, 1 16 0., S. 552, that the plaintiff can- T. B. Mon. (Ky.) 45; Glasscock not recover costs in contribution un- vs. Hamilton, 62 Tex. 143; Hall vs. less the co-surety is notified of the Gleason, 158 Ky. 789. amount paid for his account with a, iss Mosely vs. Fullerton, 59 Mo. demand for payment. -A-Pp. 143 ; Smith vs. Mason, 44 Xdb. 128 Smith vs. Mason, 44 Neb. 610; 610; 63 X. W. 41; Taylor vs. Eey- 63 N. W. 41. nolds, 53 Cal. 686; Sloo vs. Pool, IB See also Sloan vs. Gibbes, 56 6. C. 111. 47 ; Buckner vs. Stewart 314 488 THE. LAW OF SURETYSHIP. §270. Equitable contribution ^ or the right of a surety to call upon his co-surety for exoneration before payment The doctrine that a surety eannot enforce contribution until he has first paid more than his own proportion of the debt must yield to the superior equities of exceptional cases. 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 hardsbip 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; Rankin 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. Gullick, 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. Gullick (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 amouHt from her business that the direct that, upon the Plaintiff pay- EIGHTS AND EEMEDIES. / 489 The surety may also have equitable contribution enforced where the co-surety is about to make a fraudulent conveyance of his property. Under these circumstances it vrould 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 co-surety. ^'° §271. Amount recoverable in contribution. In addition to the contributory share of the debt, the surely 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 tiie 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 Wageuseller vs. Prettyman, 7' 111. Gullick is to indemnify her against App. 192; MeKee 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- i^s Boutin vs. Etsell, 110 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 i3»Lawson vs. Wright, 1 Cox Jones Eq. (N. C.) 455. 275; Ex parte Bishop, 15 Ch. Div. Post Sec. 281. 400; Buekmaster vs. Grundy, 8 111. laeBowen vs. Hoskins, 45 Miss. 626; Smith vs. Mason, 44 Neb. 610; 183; Smith vs. Rumsey, 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. 140 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. wi Derosset vs. Bradley, 63 N. C. Lennon, 83 N. C. 183; Gross vs. 17; Tarr vs. Bavenscroft, 12 Gratt. Davis, 87 Tenn. 226; 11 S. W. 92; 642. 490 THE LAW OF SUHETYSHIP. §272. Contribution as affected by the insolvency of one or men co-sureties. In determining the amount which each co-surety should con- j tribute, those who are insolvent will be excluded, and the bur- i 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 tiie 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.*** §273. 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. Bruner, 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, hut that "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; 38N. B. 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. Wiswellj 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, Iforval, 0. 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 her of solvent co-sureties. In other debt, he is entitled to 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." BIGHTS AND BKMESIES. 491 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."' §274. Surety seeking contribution mnst account to his co^nieties for indemnity furnished Mm by the principal. If a surety receives indemnity from the principal he holdd 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 "♦Johnson vs. Vaughn, 65 111. N. H. 613; Liddell vs. Wiswell, 59 425; Adams vs. Hayes, 120 N. C. Vt 365; 8 Atl. 680. 383; 27 S. E. 47; Bruce vs. Bicker- i*8Bachelder 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. Ravenscroft, 12 Gratt. jty of co-sureties is considered sev- 642; Handley vs. Heflin, 84 Ala. eral 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 O. C. i" Stevens vs. Tucker, 87 Ind. C. 1. 109; Williams vs. Ewing, 31 Ark. i*B Security Ins. Co. vs. St. Paul 229 ; Gibson vs. Mitchell, 16 Pla. Ins. Co., 50 Conn. 233; Faurot vs. 519. Gates, 86 Wis. 569; 57 N. W. 294; See also ZoUickoffer v». Seth, 44 Stewart vs. Goulden, 52 Mich. 143; Md. 359. 17 N. W. 731 ; Currier vs. Baker, 51 49S THE LAW OF SURETYSHIP. 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 hia co-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 Bhare 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 ease 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 Ga. 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- Horek, 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, 73 principal debtor, it appears to me Me. 541; Smith vs. Conrad, 15 Lft- that he is bound, as between himself Ann. 579 ; Baber vs. Hanie, li63 K. C. 5«8; 80 S. E. 67. EIGHTS AND EEMEDIES. 493 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 owes 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 i«» 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; S6 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 O. 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, ship in several transactions, in each 81 Me. 399; 17 Atl. 315. of which he had co-sureties. He ap- I'l Davis vs. Toulmiu, 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 isa 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 494 THE LAW OF SUEETYSHIP. his co-sureties for the real value of the property without regard to the price at which he had hid 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 IB* Sanders vs. Weelburg, 107 Ind. 266; 7 N. E. 573, Howk, 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." But see Elrod vs. Gastineau, 1124 Ky. 609; 9i9 S. W. 903. 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 ». 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 EIGHTS AND REMEDIES. 495 HO ofF-aet on aceouiit of the indemnity unless its value is ascer- tained, either hy 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.^"* §275. Surety may enforce contribntioii even though payment by j him was without compulsion. ' Whenever the debt matures 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. K a breach of the principal contract has occurred so that action might be maintained on the suretyship undertakings 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 cosureties as there was no liability on the bond to pay the judgment, but the co-surety who has paid the debt Y. SW ; 53 N. E. 504 ; Labbe vs. Ber- of his principal should assume the nardy, 1S6 Ind. 551; 62 N. E. ft98. burden of disposing of the indem- But see Sanders vs. Weitermark, nity, and the additional burden of 20 Tex. Civ. App. 173; 48 S. W. 900. waiting until it is disposed of, be- is^ 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; Hiehbom vs. Mosely vs. Fullerton, 59 Mo. App. Fletcher, 66 Me. 209; Skrainka vs. 143; Johnson vs. Vaughn, 65 IlL Eohan, 18 Mo. App. 341; Hardell vs. 42'5. Carroll, 90 Wis. 3150; 63 N. W. 275; But see Morrison' vs. Taylor, 2il Glasscock vs. Hamilton, 62 Tex. 143. Ala. 770. Oontro^-Stockmeyer vs. Oertlin^ 1B8 Sherman vs. Foster, 158 N. 35 La. Ann. 4i67. 496 THE LAW OF S0EETTSHIP. 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.^°* ,i So also if the claim against the surety is barred by the stat- i\^ ute of limitations, its payment will be voluntary, and recovery \ cannot be had in contribution against the co-surety.^"* •J If one surety pays a note which is void on account of usury v\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 extinguishes the principal con- tract and prevents the occurrence of the condition which fixes a liability upon the sureties.^*' issHalsey vs. Murray, 112 Ala. 185; 20 South. 575. See also Nixon vs. Beard, 111 Ind. 137; 12 N. E. 131. i59DusaQl vs. Bruguiere, 50 Cal. 456 ; Machado vs. Fernandez, 74 Cal. .362; 16 Pac. 19; Hatchett vs. Pe- gram, 21 La. Ann. 722; Turner vs. Thojn, 89 Va. 745; 17 S. E. 323; Hooper vs. Hooper, 81 Md. 155; 31 All. 508; Godfrey vs. Rice, 59 Me. 308 ; Green vs. Milbank, 56 How. Pr. 3.82; Gronna vs. Goldammer, 2:6 N. D. 1122; 143 N. W. 3fl4. 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. 8. 327. In this case the surety paying had knowledge of the lisury 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 plaintiff 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.". loiLadd vs. Chamber of Com- merce, 37 Oreg. 49; 60 Pac. 713; 61 Pac. 1127; 62 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 REMEDIES. 497 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 the 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 u 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 bond, 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. Each surety had a right to stand upon the letter of his contract, and, in case 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 voluntarilv bor- 498 THE lAW OF SUBETTSHIP. quest of his co-obligor he may have contribution/®'' but if the agreement has been made between co-sureties to pay in certain proportionr,, and thereafter one pays the whole, it is held that the one paying is not entitled to contribution.^*' Judgment against one suriety is prima facie evidence of de- fault by the principal, as against the co-Bureiy liable in con- . tribution,^'* but not conclusive.*"" §276. Contiibution 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, tiie aliquot part of the surety released cannot be recovered from 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 ^as. compelled to pay from enforcing contribution from the one against whom the creditor failed to recover.*** row money for their principal, and i«8 Ante Sec. 114. bind a non-participating surety." leTHill vs. Morse, 61 Me. 541; Fales vs. McDonald, 79 Ail. 96.9. Olapp vs. Rice, 15 Gray 557. But see Bottoms vs. Leonards, 01 los Currier vs. Baker, 61 N. H. ■-Ky. L. Rep. 862; 53 S. W. 2T3; 613; Murphy vs. Gage, 2il S. W. Hotham vs. Berry, 82 Kan. 412; (Tex. Civ. App.) 396. 108 Pae. '801; Guckenheimer & losKoelsch vs. Mixer, Admr., 58 Bros. Co. vs. Kann, 89 Atl. 807. O. S. 2W; 39 N". E. 417. Thi^ case 162 Golsen vb. Brand, 75 111. 148. arose upon a bond of a treasurer. 163 Curtis vs. Parks, '55 Cal. 106. In a joint action against the sure- 164 Bredkinridge vs. Taylor, 5 ties judgment was had a^inat one Dana (Ky.) 110. '>iit in favor of the other. The one i»»Kramph vs. Hatz, 52 Pa. 526; recovered against paid the judgment Cathcart vs. Foulke, IS Mo. 561 ; and brought this action in contribu- Briggs vs. Boyd, 37 Vt. 534; Baib- tion against the other, oock vs. Carter, 117 Ala. 57S; 213 South. 487. EIGHTS AND BEMEDIES. 499 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.^'* §277. Bankruptcy of a surety — Effect on co^nrety'i right of contribution. The N'ational 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 liabilily may be classified if it is included at all, is that all debts are provable that are founded upon contracts " express or im- plied." act.'" The term " implied contract " is not defined in the 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. Kational Bank, 20 Tex. Civ. App. 462; 49 S. W. 637. Contra — Hood vs. Morgan, 47 W. Va. 817; 36 S. E. 911. "0 Cawthome vs. Weisinger, 6 Ala. 714; Camp vs. Bostwick, 20 O. 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. I'l National Bankruptcy Act of 1898, Sec. 63 (a) (4). 500 THE LAW OF SUKETYSHIP. 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 undertaking, or whether the obligation to con^ tribute is an equity which 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 oo-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. 172 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 173 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 Jebts and claims become of his co-surety, yet the claim for absolute, to havt the same allowed contribution was barred, them." Act of Aug. 19, 1841, Sec. 5. Tobias vs. Rogers, 13 N. "S. 59 ITie 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 AND REMEDIES. 1 §278. Contribution between parties to bills and notes. Accommodation indorsers are not entitled to contribution in the absence of special agreement to that 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 banlcruptcy 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. Gardiner, C. J.: "The effect of the discharge was to exonerate Bog- 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 moment he ceased to be a co-surety with him for a common liability or a common principal. . . . . The defendajits 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 case 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, until 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 502 THE LAW OF SURETYSHIP. 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.^'" Where one signs as surety a note signed by two persons, without knowing that one of the signers is in fact a surety of the maker, he cannot be held as co-surety of such other sure- ty."" 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. Nothing was said about the order in which they were to sign or in reference to being compelled to pay more than his share of the debt, and such de-. mand is provable. It seems to fol- low logically that ©very 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 III. App. 39; Dunn vs. Sparks,,! Ind. 397; Swain vs. Bariber, 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 B<)nkruptey Act of I'8«3 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 sub'pct 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 bank- ruptcy of his co-surety. Wolmershausen vs. Gullick, L. E., a Ch. Div. ( lag's) 514. "One de- fendant I halve dismissed from the action on the ground that he is dis- charged by a composition under Sec. 18 of the Bankruptcy Act, liSSS, 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 adjudi- cation of bankruptcy could have been sustained, was a liability with- in the meaning of Sec. 37 of the Act, and therefore a debt provable in bankruptcy." 174 McDonald vs. McGruder, 3 Pet. 470; McGurk vs. Huggett, oi6 Mich. 187; 22 N. W. 308; Harrah vs. Doherty, 111 Mich. 175; 60 X. W. 242; WiUis vs. Willis, 42 W. Va. 522; 26 S. E. 516; Harshmaa vs. Armstrong, 43 Ind. 126. I'B Easterly vs. Barber, 66 N. Y. 4313; Preston vs. Gould, 64 Iowa 44; 19 N. W. 834; Kiel vs. CThoate. 92 Wis. 517; 67 N. W. 431; Smith vs. Morrill, 54 Me. 48; Harris vs. Jones, 23 N. D. 4S8: 136 N. W. 1080; Wil- son vs. Hendee, 74 N. J. L. 640; 66 Atl. 414. i'5o Citizens N'ational Bank vs. Burch, 14(5 N. C. 316; 59 S. E. 71. EIGHTS AND EEMEDIES. 503 an obligation of contribution. It was held tbat the order of signing was immaterial, and that these circumstances indicated a mutual imderstanding 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."' §279. 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 equily, as was so often held in the matter of contribution between co- sureties.^'* From the time of the very earliest cases 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.*" 1T8 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; 04 Pac. 853. i7»Toussaint vs. Martinnant, 2 T. "8 Ante Sec. 260. K, 100; Wood vs. Leland, 1 Met. Fidelity & Deposit Co. vs. Buck- ley, 75 N. H. 506; 77 Atl. 402. 504: THE LAW OF SUEETYSHIP. 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 recogni- 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. 671; Clay vs. iSeverence, 55 Vt. 300; Katz vs. Moesslnger, 110 111. 370; Martin vs. Ellerbe's Admr., 70 Ala. 326; Smith vs. iSayward, 5 Me. 504; Loiighridge vs.' 'BMiiiM,- 52 Miss. 546; Cotton vs. Alexander, 3Z Kan. 3i3i9 ; 4 Pac. 259 ; Hazleton vs. Valen- tine, ri3 Mass. 472; Blake vs. Dow- ney, 51 Mo. 437; Hellains vs. Aber- crombie, 15 S. C. 110; Boyd vs. Brooks, 34 Beav. 7; Badeley vb. Con- solidated Bank, 34 Ch. Div. §3©; Cooper vs. Parker, r,76_Ala. 122; 57 So. 472. If the principal makes an express contract of indemnity at the time the surety enters into the undertak- ing, the promiae implied by law will be merged in the express agreement, amd recovery will be limited to the terms of the latter. Roosevelt vs. Mark, 6 Johns. Ch. 26«. Eiit a special indemnity contract given by a stranger will not merge the contract implied by law. Wes- ley Church vs. Moore, io 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 delbt, and ■with re- spect to the person who bails, there is hardly a duty." Consol. Co. vs. Musgrave, 1 L. E. Ch. Div. 37 (1900); United States vs. Ryder, 110 U. S. 729; 4 S. Ct. 196 ; Carr vs. Davis, 64 W. Va- 522; 63 S. E. 326. Contra — ^Reynolds vs. Harral, 2 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, IS 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. 505 Where 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 partnership, and the bond was given for the benefit of the firm.^''' see that his principal obeys the order of the court; at least, this is the rule in the criminal law; 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 surely 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, Cart- 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- ' feet from the time when the surety became responsible. Under this rule, when the sureties signed the bond of Ramsay 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 the bond. This implied promise was 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 tnem. 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, C. 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 ease, 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. 506 THE LAW OF SUEETTSHIP. It is held that where one member of a partnership executes his individual obligation for the benefit of ihe firm, and repre- sents to the surety that it is a firm debt, and requests him to siga 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 surelyship 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; McKee vs. Hamilton, 33 0. not avail the plaintiff, as an answer S. 7; Burns vs. Parish, 3 B. Hon. 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 ; Osbom 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. 2124 ; 4 Pac. 83. upon it against the guarantor. But Contra — Hecker vs. Mahler, 64 O. this enactment is exclusively for the S. 398. beneiit of the guarantor, and is de- 180 Beal vs. Brown, 13 Allen, 114. signed to protect him from the dan- In this ease the guarantor was dclbt- ger of being made liable for the or of the principal, and when sued debts of another by false testimony. lie pleaded set-off on account of He m^ elect to fulfill his verbal money paid upon a verbal guaranty for the plaintiff, held — BigeUrm, G. EIGHTS AJSTD EEMEDIES. 507 §280. When right of indemnity arisei. An implied contraxrt; to indemnify one vrho pays the debt of another arises at the time i™ suretyship is made. " Upon well settled principles, it is Sec. 45. Albany vs. McNamara, 117 N. Y. 16S, Sec. 173. Alber vs. Froehldch, 39 0. S. 245, Sec. 185. Alters Commission Co. vs. Spencer, 230 Mo. 60S, Sec. 197. Albright vs.. Mills, 86 Ala. 324, Sec. 164. Alcatraz. Masonic Assn. vs. U. S. Fidelity & Guaranty Co., 3 Cal'. App. 338, Sec. 76-a. Alcoy Ey. vs. Greenhill, 41 London Solicitors Jour. 3130, Sec. 117. AMrich vs. Aldrich, 90 Vt. 324, Sec. 262, 276. vs. Ames, 9 Gray 76, See. 34. Aiaricks vs. Higginsi 16 Serg. & R. 212, Sec. 18, 60. Alexander vs. Eyrd, 83 Va. 690, See. 114. vs. Hutcliison, 9 Ala. 825, Sec. 204. vs. Jacoby, 23 O. S. 358, Sec. 201. Alesandria vs. Corse, 2 Cranch C. C. 363, Sec. 159. Alford vs. Baxter, 36 Vt. 158, Sec. 114. A%er vs. Thacher, 19 Pick. 51, Sec. 138. Allegheny Valley R. Co. vs. Dickfey, 131 Pa. 86, Sec. 246. Allen vs. Berryhill, 27 Iowa 534, Sec. 104. vs. Brown, 5 Lans. (N. Y.) 511, Sec. 197. vs. Commmonwealth, 90 Va. 356, Sec. 229. vs. Daniefeon, I'o R. I. 480, Sec. 262. vs. Houlden, 6 Beav. 148., Sec. 105. vs^ Kellam, 94 Pa. 253, Sec. 183, 189. vs. Mamey, 65 Ind. 398, Sec. 74, 109, 127. vs. Morgan, 5 Humph. (Tenn.) 624, Sec. 11. vs. O'Donald, 23 Fed. Rep. 573, Sec. 98, 99. vs. Powel, 108 III. 584, See. 249. vs. Ramey, 4 Strob. Law (S. C.) 30, Sec. 161. vsi Eightmere, 20 Johns 365, Sec. 67. vs. Rundle, 50 Conn. 9, Sec. 63. vs. Sharpe, 37 Ind. 67', Sec. 97. va. State, 6 BliJckf. (Ind.) 262, Sec. 156. vsi. State, 61 Ind. 268, See. 158. vs. Thompson, 10 N. H. 32^ Sec. 41. vs. Wood, 3 Ired. Eq. (N. C.) 386, See. 262. vs. Woodard, 125 Mass. 400, Sec. 118. ASler vs. Alter, 40 N. J. L. 446, Sec. 122. Alliance Trust Co. vs. Stewart, 115 Mo. 236, Sec. 193, 197. Allies vs.. Probyn., 2 Cromp. M. & R. 408, Sec. 93. Allison vs. Suitherlin, 50 Mo. 274, Sec. 244. Alsop vs. Price, 1 Doug. 160, Sec. 100. American Agricultural Chemical Co. vs. Ellsworth, 109 Me. 195, Sec. 66. TABLE OF CASES. 521 (References are to sections.) American Bonding Co. vs. Morrow, 80 Ark. 49, Sec. 233'. vs. Pueblo Investment Co., 150 Fed. 17, Sec. IT. vs. Reynolds, 203 Fed. 356, Sec. 248. vs. Rudolph, 53 Col. 389, Sec. 190. American Bonding & Trust Co. vs. Milwaukee Harvester Co,, 91 Md. 733, Sec. 129, 144. American Brewing Co. vs. Talbot, 125 Mo. 3E8, Sec. 181. American Building & Loan Assn. vs. Walteen, 52 Minn. 23, See. 131'. American Credit Indemnity Co. vs. Cassard, 83 Md. 372, Sec. 53. American Exchange Bank vs. Seaverns, 12/1 111. App. 480, Sec. 66. American Exchange National Bank vs. Goubert, 210 N. Y. 421, Sec. 194. American Fidelity Co. vs. East Ohio Sewer Pipe Co., 101 N. E. 671, Sec. 261. American Investment Co. vsi Marquam, 62 Fed. Rep. 9C0, Sec. 112. American Iron & Steel Mfg. Co. vs. Beal'l. 101 Md. 423, Sec. 86^ 94. American National Bank vs. Fidelity & Dep. Co., 58 S. E. 867, See. 248. American Radiator Co. vs. American Bonding Co., 72 Neb. 100, See. 23-a. American Surety Co. vs>. Boyle, 65 0. S. 486, Sec. 263. VS-. Folk, 124 Tenn. 139, Sec. 233. vs. Gaskill, 86. Vt. 3B», Sec. 153. vs. Koen, 49 Tex. Civ. App. 98, Sec. IS, 188. vs. Nelson, 77 Minn. 402, See. 236. vs. Pacific Surety Co., 81 Conn. 252, Sec. 137. vs. Pauly, 170 U. S. 133, Sec. 106, 190, 233, 238. VBi Raeder, Assignee, 15 0. C. C. 47, Sec. 131. vs. San Antonio Loan & Trust Co., 98 S. W. 387, Sec. 76-a. vs. Scott, 18 Okli. 264, Sec. 76-a. vsi. ShaMenberger, 183 Fed. 636, Sec. 13, 233'. vs. Thurber, 121 N. Y. 6S5, Sec. 128. vs. Thurber, 162 N. Y. 244, Sec. 236. vs. United States, 127 Ala. 349, See. 243'. American Telegnaph Co. vs. Lennig, 130 Pa. 594, Sec. 132. Ames vs. Foster, 106 Mass. 400, Sec. 39. vs. Huse, 55 Mo. App. 422, Sec. 245. vs. Macliay, 14 Iowa 2&1, Sec. 103, 177. Amicable Mut. Life Ihs. Co. vs. Sedgwick, 110 Mass. 163, Sec. 132. Amick vs. Woodworth, 58 0. S. 86, Sec. 244. Amis vs. Bank of Kentucky, 8 La. Ann. 441, Sec. 196. Amherst Bank vs. Root, 2 Met. 522, Sec. 174. Ammons vs. Whitehead, 31 Miss. 99, Sec. 186. Amory vs. Francis, 16 Mass. 309, Sec. 252. Anaheim Co. vs. Parker, 101 Cal. 4S3, Sec. 106. Anders Sec. 51. Bastow vs. Bennett, 3 Camp. 220, Sec. 50, 59. Bateman vs. Butler, 124. Ind. 229, Sen. 42. Bateman Bros. vs. Mapel, 145 Cal. 24il, Sec. 76-b. Batten VB. Maitot, 58 Vt. 271, Sec. 46. Batcson vs. Gosling, L. R., 7 C. P. 9, Sec. 1'02. Bates VB. Killian, 17 S. C. 563, Sec. 202. Baites, In re, 118 W. 524, Sec. 252. Batard vs'. Hawea, 2 El. & Bl. 2S7, See. 2i62. Bathgate vs. Haskin, 59 N. Y. 583, Sec. 2S». Baubien vs. Stoney, 1 Speeii Eq. (S. C.) 508i, Sec. 101'. Baugher vs. Duphom, 9 GiM (Md.) 314, Sec. 118. Baucus VB'. Barr, 45 Hun 582, Sec. 2>18. Bausman vs. Credit Guaramiee Co., 47 Minn. 377, Sec. 282. Bauschard vs.. FideKty & Casualty Co., 21 Pa. Sup. Ct. Rep. 370, Sec. 79, 931. Baixter vs. Ralston, In re, 18 N. B. 41)7, Sec. 252; Bay Co. vst Brock, 44 Mich. 45, Sec. 148. Beard vs. Converse, 84 111. 515, Sec. 25. vsi. Union Co., 71 Alia. 60, Sec. 117. Beardsley vb'. Hawes, 71 Conn. 39, Sec. 8, 62. Beaird vs. Russ, 32 La. Ann. 304, Sec. 181. Beakley vs. Cunningham, 165 S. W. 259, Sec. 226. Bean vs. Parker, 17 Mass. 501, Sec. 149. vs. Valile, 2 Mo. 1'26, Sec. 27. Beaman vsi. RusaeB, 20 Vt. 205,, Sec. 31. Beach vs. Zimmerman, 106 Ind. 495, Sec. 84. Beal VB. Brown, 13 ABen, 114, Sec. 25, 279. BeaiH vs. New Mexico, 16 Wiail'l. 53S, Sec. 167. vs. Walker, 26 W. Va. 741, Sec. 244. Beasley vs. State, 53 Ark. 57, Sec. 230. Bearden vs. State, 89 Ala. 211, Sec. 23il. Beaver vs. Slamker, 94 lU. 175, Sec. 244, 250. vs. Beaver, 23 Pa. 167, Sec. 281. Beauchaine vs. McKinnon, 55 Minn. 318, Sec. 176L Becker vs. Keokuk Water Works, 79 Is,. 419, Sec. lOTw vsi Krank, 77 N. Y. S. 66®, Sec. 43. VB. People, 164 IMI. 267, Sec. 189. Beckham V9. Dnake, 2 H. L. 579, Sec. 135, 142. Becktey vs. Munson, 22 Conn. 299, Sec 283. Beckwith vs. Talbot, 95 U. S. 280', Sec. 29. vs. Webber, 78 Mich. 2190, Sec. 2i51. Becovitz vs. Saperstein, 46 Ind. App. 33®, Sec. 215. Bechervaise vb. Lewis, L. R., 7 C. P. 372, Sec. 258. TABLE OF CASES. 527 (References are to sections.) BsdfoTd vs. Kelfey, 173 Mich. 492, Sec. S, 83. Bedwell ys. Gephart, 67 la. 44, Sec. 98. Beebe vs. Dudley, 26 N. H. 249, Sec. 68. vs'. Moore, 3 McLean, 387, Sec. 9. vs'. Robinson, 52 Ma.. 66, Sec. 145-. Beeson vs. Howard, 44 Ind. 4ia, Sec. 126. Beera vs. Shannon, 73 N. Y. 292, Sec. 137. vs. WoM, 116 Mo. 179, Sec. 76-a. Belden vs. Hurlbufc, 94 Wis. 562, Sec. 23-a, 109, 127. Belloni vs. Freeborn, 63 N. Y. 383, Sec. 17, 50, 74, 126. BeM vs'. Bruen» 1 How. 1'68, Sec. 49. VB. Jaeper, 2 Ired. Eq. (N. C.) 597. Sec. 268. vs. Norwood, 7 La. 95, Sec. 53. vs. Paul, 35 Neb. 240, Sec. 13'!. vff. People, 94 Illi 230, Sec. 222. vs. Eudolph, 70 Miss. 234, Sec. 224. vs. Walker, 54 Neb. 222, See. 187. vs. Western River Imp. Co., 60 Ky. 568, Sec. 206. Belinomt Min. & Mil. Co. vs. Costigan, 21 Col. 465, Sec. 197. Beaiinger vs. Thompsion, 26 Oreg. 320^ Sec. 218. Bellevue Loiaoi & Bl'dg. Assm. vs. Jeckel, 104 Ky. 159, Sec. 106. Bedlows vs. Lovell, 5 Pick. 307, See. 115. Bemis vs. SpaMing, 9 Ky. L. Rep. 764, Sec. 107. Bent vs. Bent, 43 Vt. 43i, Sec. 209. vs. Cobb, 9 Gray 387, Sec. 22. Benton vs. Fletcher, 31' Vt. 4'18i Sec. 63. vs. Gibson, 1 Hill Law (S. C.) 56, Sec. 61. vsi. Will^rd, 17 N. H. 593, Sec. 8. Benton County Sav. Bank \s. Boddioker, 117 Iowa 407', See. 23-a, 106. Benge's Admr. vs'. Eversole, 196 Ky. 131, Sec. 115. Bennett vs. Brown, 20 N. Y. 99, Sec. 207. vs'. Carey, 72 Iowa 476i Sec. 15. vs. Cook, 46 N. Y. 208, Sec. 2(61. vs. Draper, 139 N. Y. aGG, Sec. 50. vs. Southern Bank, 01 Mo. App. 297, Sec. 205. vs. State, 58 Miss. 556, Sec. 156. vs. Whitney, 94 N. Y. 302, Sec. 172. Bensinger vs. Wren, 100 Pa. 500, Sec. 76, 80. Benjamin vs. HiUard, 23 How. 149, Sec. 81. Benham vs. Assurance Co., 7 Welsb. H. & G. 744, Sec. 110. Benedict vs. Olison, 37 Minn. 4S1, Sec. 115. Bentley vs. Dorcas, 11 0. S. 3B», Sec. 181. Benne vs. Schneoko, 100 Mo. 250, Sec. 247, 249. Berlin Nat. Bank vs. Guay, 76 N. H. 216, Sec. 98. Berman vs. Elbi Loan & Sav. Co., 114 Md. 191, Sec. 95. Berton vs. Anderson, 56 Ark. 470, Sec. 01. Berryman vs. Manker, 50 Iowa 150, Sec. 75. Berry vs. Pullten, 69 Me. 101, Sec. 82, 83. 528 TABLE OF CASES. (References are to sections.) Berryhill vs. Keilmeyer, 33 Iowa 20, Sec. 188. Berghoff vs. Heekwolif, 26 Mo. 5T1, Sec. 212. Bergen vs. Stewart, 28 How. Pr. 6, Sec. 203. Benidge vs. Berridge, 44 Ch. I>iv. 168, Sec. 274. Best Brewing Co. vs. Klassen, 186 Bl. 37, See. 11, 182. Besshears vs. Rowe, 46 Mo. 501, Sec. 42. Bethune vs. Dozicr, 10 Ga. 235', Sec. 20, 73. Betts vs. Mougin, 15 La. Ann. 5&, Sec. 19S. Bevilte vs. Boyd, 16 Tex. Civ. App. 491, Sec. 248i Bezzell vs'. White, 13 Ala. 422, Sec. 274. Bick vs. Long, 15' Ind. App. 503,' Sec. 202. Bicknell vs. Henry, 69 Wash. 408, Sec. 43. Biddinger vs.. Pratt, 50 O. S. 711), Sec. 2112. Bierce vs. Waterhouse, 219 U. S. 320, Sec. 213^ 214. Bierma vs. Collumbia Typewriter Mfg. Co., 179 HI. App. 69, Sec. 211w Bigelow vs. Bridge, 8i Mass. 275', Sec. 153. vs. Comegys, 5 0. S. 256, Sec. 19. vs. Steams', 19 Johns. SO', Sec. 168. vs. Stilphen, 35 Vt. 501, Sec. 74. Bigony vs. Tyson., 75- Pa. 157, Sec. Ii35. Bill vs. Bament, 9 M. & W. 36, Sec. 28. Billings vs. Sprague, 40 IliT. 509^ Sec. 244. Billingslea vs. Ward, 33 Md. 48, Sec. 46. Binford vs. Adams, 104 Ind. iV, Sec. 259. vs. Grimes., 26 Ind. App. 481, Sec. 197. Bingham vs. Meais, 4 No. Da. 4'37, Sec. V1&, 187. Birdsall vs. Haacock, 32 O. S. 177, Sec. 18, 50, 59. Birchell vs. Neaster, 36 0. S. 331, Sec. 40, 46. Bird vs. Munroe, 66 Me. 337, Sec. 47. Birckhead vs. Brown, 5 Hill (N. Y.) 635, Sec. 51. Bishop vs. Church, 2 Ves'. 100, Sec. 69, 110. vs. Day, 13 Vt. 81, Sec. 115, 28i. vs. Eaton, 161 Mass. 480, Sec. 66. VS'. Freeman, 42 Mich. 583, Sec. 17. Bissig vs. Britton, 59 Mo. 204, Sec. 34. Bissell vs. Saxton, 66 N. Y. 55, Sec. 174. Bittick vs. Wilkins, 7 Heisk. (Tenn.) 307', Sec. 248. Bivins vs. Helstey, 4 Met. (Ky.) 78, Sec. 111. Bjoin vs. Anglim, 97 Minn. 52/7, Sec. 122. Black vs. Kaiser, 91 Ky. 422, Sec. 224. vs. Oblender, 135 Pa. 526, Sec. 156. Black Masonry & Cont. Co. vs. Nat'l Surety Co., 61; Waeh. 47ri Sec. 7e-a, 76-b. Black, Starr & Frost vs. Grabow, 216 Mass. 516, Sec. 66. Black River Bank vs. Page, 44 N. Y. 453, Sec. 1'16. Blackett vs. Crissop, 1 Lord Rayra. 278, Sec. 139. Blackburn vs. Orowder, 108 Ind. 238', Sec. 215. TABLE OF CASES. 529 (References are to sections.) Blake \s. Cole, 22 Pick. 97, Sec. 265. vs. Downey, 51 Mo. 437, Sec. 270. vs. Traders Nat. Bank, 145 Mase. 13, Sec. 248, 261. Btokeney.vs. Nalk & Co., 45 Tex. Civ. App. 635, Sec. 39. Blades vs. Dewey, 136 N. C. 17B, Sec. 129. Blanding vs. Shepard, 101 App. Div. (N. Y.) 442, Sec. 63. Blauvelt vs. Kemon, 196 Pa. 128, Sec. 76-a. Bl'akely's Trustee vs. Bogard, 143 Ky. 377, Sec. 200. Blatchford v». Millikin, 35 III. 434, See. 8. Blair vs. Perpetual Insurance Co., 10 Mo. 55&, Sec. 80, 174. vs. Eeid, 20 Tex. 310, Sec. 93. vs. Reading, 103 III, 375, Sec. 186. vs. Sanborn, 82 Tex. 6«6, Sec. 186. Blankman vs. Vallejo, 16 Cal. 638, Sec. 123. Blanchard vs. Brown, 42 Mich. 46, Sec. 203. Bland vs. Creiager, IS B. Mon. (Ky.) 509, Sec. 206. Bless vs. JenkinS', 12ft Mo. 647, Sec. 46. Blevins vs. State, 31 Ark. 53', Sec. 2SS. Blount vs. Hawkins, 19 Ala. 100, Sec. 41. Bloomington Min. Co. vs. Searles, 63 N. J. L. 47, Sec. 77. Blkjck vs. Blum, 33 111. App. 643, See. 182. Blume vs. Bowman, 2 Ired. (N. C.) 338, Sec. 12(7. Blydenburgh vs. Bingham, 38 N. Y. 371', See. 98. Board of Commissioners vs. Branham, 57 Fed. Rep. 179, Sec. 79. vs. Gray, ©1 Minn. 242, Sec. 151. Board of Education) vs. Fudge, 4 Ga. App. 637, Sec. IS'. vs. Jewelli, 44 Minn. 427, Sec. 166. vs. National' Surety Co., 18S Mo. 166, Sec. 137. vs. Quick, 99 N. Y. 139, Sec. 152. vs. Robinson, 81 Minn. 305, Sec. 23-a, 166. vs. Thompson, 33 0. S. 321, Sec. 16. vs. U. S. Fidelity & Guar. Co., 155 Mo. App. 109, Sec. 17. BoaJd of School) Directors vs. Brown, 33' La. Ann. 363, Sec. 1^^ Board of Supervisors' vs. Ctark, 92 N. Y. 391, Sec. 152. • vs. Ehters, 45 Wis. 281, Sec. 1B4. vsi. Pabst, 70 Wis'. 352, Sec. 154. Boals vs. Nixon, 36 111. App. 517, Sec. 43. Boalt vs. Brown, 13 O. S. 364, Sec. 72. Boaler vs. Mayor, 19 C. B. N. S. 76, Sec. 92. Boatmen's Bank vs. Johnson, 24 Mo. App. 316, Sec 102. Boardman vs. Larrabee, SI ConiL. 39, Sec. 82. Boaz vs. MilDiken, 4 Ky. L. Rep. 700, Sec. 189'. Boatwright vs. Stewart, 37 Ark. 614', See. 203, 208. Bobbott vs. Shryer, 70 Ind. 513, Sec. 26 Bockenstead vs. Perkins, 73 Iowa 23, Sec. 156, 224. Bocard vs. State, 79 Ind. 270, Sec. 160. Boehne vs. Murphy, 46 Mo. 57, Sec. 59. 530 TABLE OF CASES. (References are to sections.) Bohaimon vs. Combs-, 112 B. Mon. (Ky.) 963, Sec. 246, Bois« City vs-. Randall, 66 Pa«. 938, Sec. 205. Bolte vs. Bogardis, 86 Pa. 37, Sec. IM. Boliey vs. Lake St. EHevated E. R. Co., 64 IH; App. SOS, See. 125. BoLks vs. Bird, 12/ Colo. App. 78, Sec. 187. Boliing vs. Tate, 66 Ala. 417, See. 197. Boltz'8 Estate, IBS Pa. 77, Sec. 248., 249. Bond vs. Farwell Co., 172,' Fed. 58i, See. 60, 69. vs. Armstrong, 88 tod. 63-, Sec. 96. Bone vs. Smifh, 164 S. W. 9221, Sec. 43.. Bonney vs. Seely, 2 Wend. 481, Sec. 282', Booth vs.. Irving Nat. Ex. Barak, lie Md. 668> Sec. 49, Gl-, 67', 68. vs. Powers, 56 N. Y. 20, Sec. 74. V8. Storrs., et at, 75 HI. 438, See. 15, 105. Boothbay v». Giles, 68 Me. 160, Sec. 146 Boone vs. Jones, 54 Iowa 699, Sec. 2.1, 1'4&, 174!. vs. State, 61 Ind. 370, Sec. 14«. Boom vs. St. Pauli, etc., 33i Minn. 263, Sec. 2112. Boppart vs. Siirety Co., 140 Mo. App. 67S, Sec. 76-a. Borden vs. Houston, 3 Tex. 594, Sec. 19. Boston Duck Co. vs'. Dewey, 6 Gray 446, Se& 46. Boston & Sandwich Gliass Co. vs. Moore, 119 Mass. 43&, Sec. 60. Bosman vs. Aketey, 3& Mich. 710, Sec. 63. Bostwick vs. Van Voorhis, 91 N. Y. 35Si Sec. 15, 71^ 12a. Boawell vs. Coliquitt, 73 Ga. 63, Sec. 238. Bott vs. Barr, 99 Ind. 243, Sec. 40. Bottfield vs.. Gordon, 190 Mass. 567, Sec. 91. Bottoms vs.. Leonards, 211 Ky. L. Rep. 863, Sec. 275. Boultbee vs. Stubbs, 16 Ves: 20, See. 92: Boulden vs. Estey, 92 Ala. 1182', Sec. 188'. Bourne vs. Stevenson, 58 Me. 499, Sec 217. Boulware vs. Hartsook, 83 Va. 679, Sec. 284. Boutin vs. Etsell, 110 Wis. 276, Sec. 269., 271. Bowmaker vs. Moore, 7 Price 223', Sec. 81. Bower vs. Jones, 1138 N. W. 470, Sec. 16. Bowden vs. Derby, 97 Me. 536', Sec. 170. Bowers vs. Beck, 2 Nev. 139, Sec. 202. vs. Fleming, 67 Ind. 541, Sec. Ii63. Bowker vs. Bull, 1 Sim. (N. S.) 29, Sec. 250. Bowen vs. Hoskins, 45. Miss. VSS, Sec. 270. Bowman va. Blodgett, 2 Met. 308, Sec. 279. Boyd Tobacco Warehouse Co. vs. Terrill, 76 Ky. 463, Sec. 48. Boyd vs. Bell, 69 Tex. 735^ Sec. 119. vs. Brooks, 34 Beav. 7, Sec. 279. vs. Parker, 43 Md. IBS, Sec. 255'. va. Snyder, 49 Md. 326, Sec. 66. Boyden vs.. United States, 13 Wall. 17, Sec 167. Boyoe vs. Murphy, 91 Ind. 1, Sec. 37. TABLE OF CASES. 531 (References are to sections.) Bardley vb. Burwell, 3 Denio (N. Y.) 61, Sec. 262^ 275. vs. Fisher, 18' Wallace 335', Sec. 168. ■vs. Mami, 37 Mich. 1, Sec. 74. vs. Richardson, 23 Vit. 720, Sec. 44. Bradley Eng. & Mfg. Co. vsi. Hcyburn, 56 Wiash. 628, Sec. 91-a» Braddock vs. Wertheimer, 68 Ark. 423, S€c. 67. Bradford vs. McCormick, 71 la. 129, Sec. 141. Braimum Lumber Co. vs. Pickard, 331 Iiiid. App. 484, Sec. 73. Brandup vs. Brazier, 111 Minn. 376, Sec. 76-a. Bradford vs. Wartsoni 65 Fla. 461, Sec. 216. Bradshaw vs. Barber, IBS' Minn. 478, Sec. 50. Bragg vs. Patterson, 85 Ala. 233, Sec. 249., 280. vs. Shain, 49' Cal. 131, See. 79i. Brant vs. Bamott, 10 Ind. App. 65'3, Sec. 16. Bray vs. Parcher, 80 Wi». 16', Sec. 41. Brady vs. Reynolds, 13 Cal. 32, Sec. 69. Brackett vs. Rich, 23 Minn;. 485^ Sec. 63. Bradbury vs. Morgan, 1 Hurl. & Colt. 249, Sec. 71. Brand vs. Johmowe, 60 Mich. 210, Sec. 133. Brainard vs. Jones, 18 N. Y. 35., Sec. 137, 214. Bradbume vs. Botfield, 14 M. & W. SBW, Sec. 143. Brayfcon vs. Town, 12 Iowa 34!6, Sec. 170. Braithwaite vs. Jordiam, 5 N. D. 196, Sec. 181. Braiden vs. Mercer, 44 0. S. 339, Sec. 226. Brandon vs. Brandon, 3 De G. & J. 524, Sec. 244. Braugtt vsi. Griffith, 16 Iowa 36, Se<:. 248, 240, 284. Brandenburg vs. Fiynn, 12 B. Mon. (Ky.) 397, Sec. 254, 263. Bramble vs. Ward, 40 0. S. 2'67, Sec. 94. Bree vs. Holbech, 2 Doug. 665, Sec. 14'1. Breed vs. Hilhouse, 7 Conn. 523, Sec. 16, 57, 67. vs. Weed, 130 Wis. 264, Sec. 1S8. Brent vs. Green, 6 -Leigh (Via.) 16, Sec. 22. Brewster vs. Balch, 41 N. Y. Super. Ct. 63, Sec. 2il7. Brewer vs. Horst Lachir.'.-.nd Co., 127 Cal. 643, Sec. 30. Ereckett vs. Addyman, 9 Q. B. Div. 783, Sec. 71. Brengle vs. Bushey, 40 Md. Ml, Sec. 86. Breen vs. Kelliey, 45 Mirai. 3S2, Sec. 131. Brennan vs. Clark, 20 Neb. 385, Sec. 135'. Breckinridge ^"s. Taytor, 5 Dana (Ky.l 110, Sec. 275. Briggs vs. Boyd, 37 Vt. 534, Sec. 275. vs. Downing & Mathews, 48 Iowa 550, Sec. 9. vs. Latham, 36 Kans. 205, Sec. 16. vs. Manning, 80 Ark. 304, Sec. 221. vs. No.rris, eS Mich. 325, Sec. 94. vs. Partridge, 64 N. Y. 3.57, Sec. 160. Bright vs. Carpenter, 9- 0. 130, Sect 9, 10. vs. Lennon, 83 N. C. 183, Sec. 263, 271., 276'. vs. McKnight, 1 Sneed (Tenn.) 158, Sec. 18, 50, 66. 532 TABLE OF CASES. (References are to sections.) Brilllion Lumber Co. vs. Barnard, im Wis. 284, Sec. lOO, 1129, Brigham vs. Carliate, 78 Ala. 243, Sec. 46. Breitung vb. Lindauer, 37 Mich. 217, Sec. 85. Bridges vs. Blake, J 06 Ind. 332, Sec. 95. Bristol Milling & Mfg. Co. vs. Probasco, 64 Ind. 406, See. 97. Brick vs. Freehold Nat. Bank, 317 N. J. Law 307, Sec. 99. Brighton Bank vs. Smith, 94 Mass. 243, Sec. 137. Brite vs. State, 24 Tex. 219, Sec. 229. Brinson vs. Thomaai, 2 Jones Eq. (N. C.) 414, Sec. 248. Bridgman vs. Johnson, 44 Mich. 491, Sec. 251. Brioe vs. Watkins, 30 La. Ann. 21, Sec. 259. Brisendine vs. Martin, 1 li-od. Law. (N. C.) 286, Sec. 269. Bridgeport Malleable Iron Co. vs. Iowa Cutlery Co., 180 Iowa 736, Sec. 50. Brown vs. Ayer, 24 Ga. 288', See. 102. vs. Bradford, 30 Ga. 92(7, Sec. 103^, 177. vs. Bradlee, 166 Mass. 28, Sec. 161. vs. Baldwin, 121 Mo. 126, Sec. 197. vs. Bank, 79 HT. C. 244, Sec. 252. vs. Curtisa, 2 N. Y. 226, Sec. 42, 61, 67. vs. Conner, 32' N. C. 75, See. 185i vs. Davenport, 76 Ga. 799, Sec. 108. vs. First Nat. Bank, 112 Fed. 901, See. 96. vs. Houck, 41 Hun 16, Sec. 248. vs. Kirk, 20 Mo. App. 524, See. 23', 2S1. vs. Kinsey, »1 N. C. 245, Sec. 126. vs. Lattimore, 17 Cal. 93, Sec. 153. vs. Mo. Pac. Ry. Co., 85' Mo. 1B3-, Sec. 191. ■vs. Phipps, 14 Miss. 51, Sec. 161. vs. Rathburn, 10 Ore. 158, Sec. 98. vs. Ray, 18 N. H. 102, Sec. 274. vs. Russelll, 106 Mass. 14, See. 145. vs. Shelby, 4 Ind. App. 477, Sec. 93. vs. Spiegeill, 166 Mich. 138, See. 67. vs. State, 78 Ind. 239, See. 160. vs. Title Guaranty & Surety Co., 232i Pa. 337, Sec. 238. VS'. Vermont Mutual Fire Ins. Co., 83 Vt. mi; See. 102. vs. Weaver, 76 Miss. 7, Sec. 164, 170. Brown Carriage Co. vs. Dowd, 156 N. C. 307, Sec. 98. Browne vs. Can, 2 Russ. 60O, Sec. 100. Brownell vs. Winnie, 29 N. Y. 400, Sec. 75'. Bromberg vs. Fidelity & Dep. Co., 139 Alia. 338, Sec. 108. Browning, et at, vs. Merritt, et al., 61 Ind. 425, Sec. 10, 112. Brockway vs. Petted, 7ft Mich. 620, Sec. 19. Brodie vs. St. Paul, 1 Ves. Jr. 336, Sec. 29. Brooking vs. Bank, 83. Ky. 431, Sec. H3. Brooks vs. Allen, 62 Ind. 401, Sec. 74. vs. Baker, 9 Daly (N. Y. C. P.) 398', Sec. 55. vs. Maugan, 86 Mich. 576, Sec. l€8i TABLE OF CASES. 538 (References are to sections.) Brokaw ts. Kel&ey, 20 HI. 304, Sec. 5T. Broome vs. The United States', li5 How. 143, Sec. 71, 119. Broad v&. Paris, 66 Tex. WD, Sec. 154. Broadway Nat. Bank vs. Baker, 176 Mass. 294, Sec. 11. Brounty vs. Daniels, 23 Neb. 162, Sec. 182. Brough's Estate, 71 Pa. 460, Sec. 245. Bruce vs. Bickerton, 18 W. Va. 342, Sec. 373. vs. U. S., 17 How. 437, Sec. 196. Brumby vs. Barnard, 60 Ga. 262, Sec. 201. Brumback vs. German Bank, 46 Neb. 540, Sec. 109. Brubaker vs. Okeson, ^ Pa. 51 &, Sec. 113: Brunswick vs. Snow, 73 Me. 177, Sec. 172. Bryan vs. Berry, 6 Cat. 394, Sec. 221 vs. CatteM!, 15 la^ 5861, Sec. 145. vs. United States, 90 Fed. Rep. 473, Sec. 170. Bryant vs. American Bonding Co., 77 O. S. 90, Sec. 233. vs. Crosby, 36 Me. 562, Sec. 103. vs. Kinyon, 127 Mich. 152', Sec. 182. vs. Rich, 104 Mith. 124, Sec. 42. Buckingham vs. Murray, 7 Houst. 176, Sec. 66. Bucki & Son Lumber Co. vs'. Fidelity & Deposit Co., 109 Fed. Rep. 393, Sec. 208. Buckley vs. Van Diver, 70 Miss. 62E', Sec. 208. Buckner vs. Stewart, 34 Alia. 528', Sec. 269. Buckmaster vs. Grundy, 8 111 626, Sec. 271. Buchanan vs. Milligan, 12S Ind. 332, Sec. 185. vs. Meisser, 105 BT. 63S, Sec. 266. Buffalo Cement Co. vs. McNaughton, 90 Hun 74, See. 131. Buffalo Press Club vs. Greene, 86 Hun 20, Sec. 138. Buffendeau vs. Brooks, 28 Cal'. 641, Sec. 139. Bugbee vs. Kendricken, 130 Mass. 4'37, Sec. 36. Buhrer vs. Baldwin, 137 Mich. 263, See. 65, 66. Building Assn. vs. Cummings, 45 0. S. 664, Sec. 20, 12!, 123. Bull vs. Allen, 19 Conn. 101, Sec. 1'15. vs. Coe, 77 Cal. 54, Sec. 95, 102. BuU'ard vsr. Johns, 50 Ala. 382, Sec. 30. Bullock vs. Campbell, 9 Gill (Md.) 182, Sec. 280, 284. Buljger, In re, 45 Cal. 553, Sec. mS: BuMowa vs. Orgo, 57 N. J. Eq. 428, Sec. 44. Bullwinkle vs. Guttenburg, 17 Wis. 5»3, Sec. 163. Bulkeley vs. House, 62 Conn. 459, Sec. 264. Bulkley va. Stephens, 29 0. S. 620, Sec. 184. Bulmer vs. Jenkins, 3 How. Pr. 11, Sec. 210. Bunneman vs. Wagner, 16 Ore. 433, Sec. 41. Bunting vs. Gales, 77 N. C. 283, Sec. 145'. Bunn vs. Jetmore, 70 Mo. 228, Sec. 149. vsi. Lindsay, 95 Mo. 250, Sec. 259. Bunker vs. Osbom, 13* Cal. 480, Sec. 278. 534 TABIiE OF CASES. (References are to sections.) BuBce vs. Bunce, 65 la. 106, Sec. 224. Burson vs. Andes & Wife, 83 Va. 445, Sec. 17. Burden vs. Knight, 82 la. 5«4, Sec. 45. Burt vs. Wilson, 28 Cal. 632, Sec. 46. Burgoyne vs. Ohio Life Ins. & Trust Co., 5 O. S. 586; Sec. 60', 119. Burke vs. Ctruger, 8 Tex. 66, Sec. 86. vs. Lee, 59 Ga. 1'65, Sec. 247. Burkle vs. Luoe, 1 N. Y. 163, Sec. 312, Burnhisel vs. Firman, 22 WalT. 170, Sec. 97. Burr vs. Boyer, 2 Neb. 265i Sec. 99, 257. Burton vs. Anderson^ 5 Har. (Del.) 221, 222. vs. Hansford, 10 W. Va. 470, See. 10. Burgess vs. Badger, 124 HI. 288, Sec. 128. vs. Doble, 14!9 Mass. 2S6, Sec. 188. BurchfieW vs. Haffey, 34 Kan. 42', See. 1137. Burnet vs. Courts', 5 Har. & John. (Md.) 78, Sec. 140. Burnett v». MillBa/ps, 59 Miss. 333, Sec. 263, 267. vs'. Stark, 136 N. W. 670, Sec. 197. vs. State, 18 Tex. App. 288, Sec. 2E9. Bumsi vs. Fidelity & Deposit Co., 96 Mo. App. 467, See. 7'6'-a. vs. Folansibee, 20 111. App. 41, Sec. 143. vs. Parish, 3 B. Mon. (Ky.) 8, Sec. 270-. Burrus vs. Cook, 93 S. W. 8fift, Sec. 249. Burroughs vs. Lott, 19 Call. IBS', Sec. 272. BushneLI vs. Bishop Hill Colony, 28 111'. 204, Sec. 58i. vs. Bushnell, 77 Wis. 435, Sec. 262, 269. Bustamente vs. Stewart, 55 Cal. II64 Sec. 197. Bush vs. Kirkbride, 131 Ala. 405, Sec. 197. Busch vs. Fisher, 89 Mich. 192, See. 215. Bushong vs. Tayltor, 82 Mo. 660, Sec. 261. Butcher vs. Stuart, I'l M. & W. 857, Sec. 38. Butler vs. United States, 21 WalL 272, Sec. 127. vs. Wadley, 19 Ind. 502, Sec. 182, 100 Buttllar vs. Davis, 52 Tex. 74, Sec. 182. Byers vs. Alcorn, 6 IVk App. 30, Sec. 277. vs. Hickman Grain Co., 112 Iowa 451', Sec. 54, 78. vs. State, 20 Ind. 47, Sec. 146. Byrne vs. Gardner, 33 La. Ann. 6, Sec. 208. vs. RiddeH, 4 La. Ann. 3, Sec. 182. Cady vs. Shepard, 12 Wis. 639, Sec. 10. Cadwel'l) vs. Colgate, 7 Barb. 253, Sec. 199. vs. Jans, 1 Mont. 570, Sec. 215. Caflfery vs. Dudgeon, 38 Ind. 512, Sec. 211. Cahill Iron Works vs. Pemberton, 62 N". Y. S. 944, Sec. 57. Cahuzao vs. Samind, 29 Ala. '388, Sec. 66. TABLE OF CASES. 535 (References are to sections.) Cahall vs. Citizens Mut. BIdg. Assn., 74 Ala. 539, Sec. 188. Cain vs. Harden, 1 Ore. 360, Sec. 181. vs. State, 55, Ala. 170, Sec. 232. V9. Vogt, 138 Ibwa 631, Sec. 90. Cairnes vs. Knight, 17 0. S. 68, Sec. 135'. CaHibreath vs. Coyne, 4S Col. 19», See. 186. Calveirt vs. London Dock Co., 2 Keen. 630, Sec. 7e-b, 79. Calvo vs. Davies, 73 N. Y. 211, See. 23-, 90. CaUoway vs. Snapp, 78 Ky. 561, Sec. 100. Callender vs. Olcott, 1 Mich. 344, Sec. 147. Calkins vs. Chandler, 36 Mich. 320, Sec. 40. Calhoun vs'. Hajman, 87 Alu. 277^ Sec. 203. vs. Little, lOe 6a. 336, Sec. 168. Callahan vs. SaJeski, 29 Ark. 216, Sec. 187. California Savings Bank vs. Amer. Sur. Co., 87 Fed. Rep. 118, See. 241'. Calvert vs. Gordon, 3 Man. & Ry. 124, Sec. 119. Camp vs. Bostwick, 20 0. S. 3S7, Sec. 269, 276. vs. Simmons, 62 Ga. 73, Sec. 8, 10. Campbell vs. American Bonding Co., 172; Ala. 458', Sec. 21& vs. Baker, 4fl Pa. 243, Sec. 61, 67. vs. Carroll, 35- Mo. App. 640, See. T92. vs. Chamberlain, 10 Iowa 337, See. 208'. vs. Findley, 3 Humph. 330, Sec. 27. vs. Gates, 17 Imd. 126, Sec. 113. vs. Johnson, 41' 0. S. 588, Sec. IS', 218. vs. People, 154 Dl. 596', Sec. 162 vs. Rothwelli, 47 L. J. C. L. 144, See. 98. vs. Rotering, 42 Minn. 156, Sec. 141. Campbell Ptg. I'resa Co. vs. Powell, 78 Tex. 58, Sec. 111. Camden vs. Doremus', 3 How. 515, Sec. 63. vs. McKoy, 4 M^ 4all, Sen. 10. Cambridge Sav. Bank vs. Hyde, 131 Mass. 77, Sec. 73, 79. Cambria Iron Co. -vsi. Keynes, 56 0. S. 501, Sec. 59. Cameron vs. Burger, 60 Ore. 458, Sec. 23il. vs. Haias Bros. Packing Co., » Ala. App. 520, Sec. 36. Canfield vs. City of Erie, 21 Mich. 160, See. Ifil. Cantril vs. Babcock, lil Colo. 14{!; Sec. 213. Cape Girardeau Bel'l Tel. Co. vs'. Hamil's Estate, 134 S. W. 1103, Sec. 259. Caperton vs. Gray, 4 Yerg. (Tenn.) 563, Sec. 30. Capehajt vs. Mhoon, S Jones' Eq. (N. C.) 178, Sec. 259. Capel vs. Butler, 2 Sim. & Stu. 4!57, See. 89, 267. Capen vs. Bartliett, 163 Mass. 346, See. 2113. Carr vs. Askew, 94 K. C. 194, Sec. 224. vs. Davis, 64 W. Va. 522, Sec. 279. va. Meade, 77 Va. 112, Seo.. 176. vs. Smith, 129 N. C. 232, Sec. 264. va. Sutton. 70 W. Va. 417, Sec. 230. 536 TABLE OP CASES. (References are to sections.) Carter ys. Black, 4 Dev. & Bat. Law (N. p.) 425, Sec. 27». vs. Fidelity & Deposit Co., 134 Ala. 360, See. 146. vs. Mulrein, 82 Cal. IW, Sec. 194. vs. Thorn, 18 E. Mon. (Ky.) 613, Sec. 137. vs. Tice, 120 111. 277, Sec. 225. v». Young, 77 Tenn. 210, Sec. Z18. vs. ZenWin, 68 Ind. 436', Sec. 40, 49. Carpenter vs. Broost, 2 Sandf. 537, Sec. 69. vs. Bowen, 42 Miss. 28, Sec. 258. vs. Davis, 72 III. 14, Sec. 46. vs. Kelly, 9 0. 106, Sec. 253. vs. King, 9 Met. 511, Sec. 113. vs. Longan, 16 WalT. 271^ Sec. 51. vs. Minter, 72 Tex. 370, Sec. 248. vs. Oaks, 10 Eich. L. 17, Sec. 10. vs. TurreiWi, 100 Mass. 450, 452, Sec. 202'. Carroll vs. Bowie, 7 Gill. (Md.) 34, Sec. 140. vs. McGee, 26 N. C. 13, See. 1S4, 189. vs. Partridge, IB Mo. App. 583, Sec. 139. OardeU vs. McNieli 21 N. Y. 336, Sec. 42. Carver vs. Carver, 77 Ind. 498, Sec. 19. vs. Carver, 115 Ind. 530, Sec. 188. Carson vs. Reid, 137 Cal. 253, Sec. 96. Cairatm Assn. vs. Miller, 1!6 Nev. 327, Sec. 77. Carey vs. State, 34 Ind. 105, Sec. 163. Carnahan vs. Tousey, 93 Tnd. 561, Sec. 142'. Carmichael vs. Holloway, 9 Ind. 51©, Sec. 181; Carothers vs. Mcllhenmy, 63 Tex. 138, Sec. 204. Carithers vs. Stuart, 87 Ind. 424, Sec. 245. ■ Carrawlay vs. Walace, W Sou. Rep. (Miss'.) 930, Sec. 214. Oarldste vs. WUkins, 51 Ala. 371, Sec. 256. Case vs. Howard, 41 Iowa 479, Sec. 85. vs. Hulbebush, 122 Alk. 212, Sec. 170. vs. Luse, 28 Iowa 527, Sec. 58. Casey vs. Peebles', 13 Neb. 7, Sec. 21. Cass County vs. Amer. Ex. Bank, 11 N. D. 238; Sec. III*. Cass Co. vs. Beck, 76 Iowa 487, Sec. 189. Cason vs. Connor, 83 Tex. 26, Sec. 245. Casoni vs'. Jerome, 58 N. Y. 315', Sec. 16. Casper vs. Kent Circuit Judge, 45 Mich. 261, Sec. 215. vff. People, 6 IE. App. 28, Sec. 164. Cash vs. Peopfe, 32 111. App. 260, Sec. 164. Cassier vs. Ealies, 1&9 Mass. 46-1, Sec. 172. Casky vs. Haviland, 13 Ala. 314, Sec, 174. Castling va. Aubert, 2 East 325, Sec. 41. Casselberry vs. Warren, 40 111. App. 626, Sec. llOi. Cathcart vs. Foulke, 13i Mo. 56il, Sec. 275i. Catl'ett vs. Brodie, 9 Wheat. 563, Sec. 179. TABUB OP OASES. 537 (References are to sections.) Cauthorm vs. Berry, 69 Mo. App. 404, Sec. 249. TB. Weisinger, 6 Alia. 7'14, Sec. 276. Cauthron Lumber Ck>. vs. Hall, 76 Ark. 1, Sec. 36. Cavazoe vs. Trevino, 6 Wall. 773', See. 4&. Cawley, et al., vs. The Peopfe, »5 IH'. 249, Sec. 13, 20, 106, 150. Cayuga Bridge Co. vs. Magee, 2 Paige 22, 116, Sec. 179. Cellers vs. Maechem, 40 Ore. 186, Sec. 91 -a. Central Banking & Surety Co. vs. U. S. Fid. & Guar. Co., 80 S. E, 121, Sec. 2il9. Central Savings Bank vs. Shine, 48 Mo. 456, Sec. 66. Chaddock vs. Vanness, 35 N. J. L. 517, Sec. 10. Chaffee vs. Jones, 19 Pick. 260, Sec. 9, 10. vs. U. S. Fid. & Guar. Co., 128 Fed. 918, Sec. 76-a. Chase vs. Beraud, 29 Cal'. 138, See. 186. vs. Hathorn, 61 Me. 505, Sec. 108. ve. Ingallfe, 97 Mass-. 524, Sec. 172. vs. McDonald, 7 Har. & John. 160, Sec. 2. Champion vs. Griffith, 18 0. 268, See. 8, 9. Champlain vs. People, 2 N. Y. 82, Sec. 2»1. Chalaron vbi McFarlane, 9 La. (Curry) 227, Sec. 20. Chafodn vs. Rich, 77 Cai'. 476, Sec. 61: Chamock vs. Jones, 115 N. W. 1072, Sec. 259. Chapin vs. Lapham, 20 Pick. 467, Sec. 3il. vs. MerreM!, 4 Wend. 657, Sec. 266-. Chadwick vs. Eastman, 58 Me. 12, Sec. 74, 75. Charlotte R. R. Co. vs. Gow, 59 Ga. 685, See. 107. Chapman vs. Bluck, 5 Scotts Rep. 515, Sec. 128. ChaJfant vsi. Payton, 91 Imd. 202, Sec. 18S. ChlanoelTor vs: Hoxsey, 4)1 N. J. L. 217, Sec. 142. Chandler vs. Hi^ns, 109 III. 602, Sec. 249, 251. vs'. Rutherford, 101 Fed. 774, See. 165. vs. State, 1 Lea (Tenn.) 296, Sec. 163, 172. vs. Thornton, 4 B. Mon. (Ky.) 360, Sec. 188. Chandler Lumber Co. vs. Radke, 136 Wis'. 495, See. 76, 80. ChamberHain, vs. Beller, 18 N. Y. 11*, Sec. 164. vs. Godfrey, 36 Vt. 380, Sec. 177. Charles vs. Haskins', 111 Iowa 329, See. 164. vs. Hoskins, 14 Iowa 471', Sec. 176. Charles City Plow Co. vs. Jones, 71 Iowa 234, Sec. 204. Chapline vs. Robertson, 44 Ark. 202:, Sec. 206. Chapeze vs. Young, 87 Ky. 476, See. 264. Ohester vs. Broderick, 131 N. Y. 540, Sec. 189. vff. Kingston Bank, 16 N. Y. 336, See. 26T. vs. Leonard, 68 Conn. 495, Sec. 73, 79. Cheltenham Fire Brick Co. vs.. Cook, 44 Mo. 29', See. 138i. Cheyboygan vs. Erratt, 110 Mich. 156, See. 163. Chemical Bank vs'. Armstrong, 58 Fed. Rep. 372', Sec. 262. Cherry vs. Wilson, 76' N. C. 164, Sec. 263. 538 TABLE OP CASES. (References are to sections.) Chicago vs. Agnew, 264 111. 288, Sec. TOa. Chicago A. & N. K. R. vs. Wihitney, 143 Iowa 506, Sec. 197. Chiteago B. & Q. Ry. vs. Bartltett, 20 IlL. App. 96, Sec. 180. Chicago vs.. Gage, 95 111. 593, Sec. 21, 168, 174, 177. Chicago City Railway Co. vs. Howison, 8i6 111. 215', Sec. 196. Chicago Trust & Sav. Bamk vs. Nordgrem 167 111. 633, Sec. 8. Chicago & A. R. R. Co. vs. Higgins, 58 IB. 128, Sec. 130. Child vs. Pearl, 43 Vt. 224, Sec. 25. vs. Powder Works', 44 N. H. 364, Sec. 280, 282. Childers vs. Talbott, 16 Pac. Rep. (N. M.) 276, Sec. 26. Chickasaw Co. vs. Pitcher, 36 Iowa 5S3, Sec. 85. Chilton vs. Chapman, 13 Mo. 470, Sec. 274. vs. Robbing, 4 Ala. 233, Sec. 80. Chipman vs. Todd, 60 Me. 28B, Sec. 114. ChLs.enliall vs. Hines, 100 S. W. 3i62, Sec. 208. Chips.tead vs. Porter, 63 Ga. 220, Sec. W2. Chipps vs. HartnoE, 4 B. & S. 414, Sec. 279.. Chitwood vs. Hatfielld, 1.% Mo. App. 688, Sec. 10. Chom vs. Merrill, 9 La. Ann. 533, Sec. 10. Choate vs. Arrington, 116 Mass. 5S2, Sec. 218. vs. Jacobs, 136 Mass. 297, Sec. 217. vs. Thomdike, 138 Mass. 37I, Sec. 2118; Chrisman vs. Hodges, 76 Mo. 413, Sec. 49. vs. Jones,. 34 Ark. 73, Sec. 263 . vs. Rogers, 30 Ark. 3Sil, Sec. 207. vsi. Tuttte, 58 Ind. 156, Sec. 116. Christi'am & Gunn vs. Keen, 80 Via. 369, See. 73. ChTiB.tal vs.. Kelly, 88 UT. Y. 286, Sec. 206. Church vs. Noble, 24 m. 219-V, Sec. 20, IW.. vs. Simmons, 83 N. Y. 261, Sec. 189'. ChurchM.1 vs. Abraham, 22 lU. 466, Sec. 204.. Chute vs. Pattee, 37 Me. 102, Sec. 88. Citizens Bank vs. Douglass, IBI S. W. 601, Sec. 43. vsi. Eliott, 9 Kas. App. 797, Sec. lOB. vs. Whinery, 110 Iowa 390, Sec. 96. vs. Wiegand, lEi Phila. Rep. 496, Sec. 130. Citizens' Loa'n Assn. vs. Nugent, 40 N. J. L. 21B, Sec. 129. Citizens Nat. Bank vs. Bureh, 145 N. C. 316, Sec. 278. Citizens Trust & Guaranty Oo. vs. Ohio Vaiaey Tie Co., 136 Ky. 421, Sec. IW. City Bank vs. Luckie, 8 Ch. App. 733, Sec. 266. vs. Young, 43 N. H. 457, Sec. 99. City NationlaH Bank vs. Dudgeon, 65 HI 11, Sec. 250. vs. Jordan, 1S9 Iowa 499, Sec. 15. vs. Phelips, 86 N. Y. 484, Sec. 18, 66. Clark vs. Bank of Hennessey, 14 Okl. 572, Sec. 122. vs. Barnard, 108 U. S. 436, 459, Sec. 136. vs. Billings-, 59 Ind. 509, Sec. 97. TABLE OF CASES. 539 (References are to sections.) Clark vs. Bryan, 1« Md. 171, Sec. 206. vs. Bryce, 64 Ga. 496, See. 23-a. ■vs. Chamberlain, 112 llass. ]§5:%€C. 29. vs. Clayton, 61 Cal. 634, Sec. 193. vs. First Nat. Bank, 57 Mo. App. 277, Sec. 248. V6. Fredenibuig, 4a Mich. 263, See. 221'. V9. GeiBtltey, 204 U. S. 504!, Sec. 84. vs. Jones', 85 Ala. 127, Sec. 41. vs. Logan County, 13S Ky. 676|^ Sec. 163. vs. Mallory, 185' 111. 227, Sec. 119. vs. Miller, 54 N. Y. 528^ Sec. 1712. vs. Osborn, 41 0. S. 28, Sec. 116. vs. Remingiton, 11 Met. Seii Sec. 69. vs'. Sickler, 64 N. Y. 2311, Sec. 96. vs. Thayer, lOS Mass. 2il«, Sec. 71. VB. Wilkinson, 50' Wis. 543, Sec. 156. vs. Wilston, 103 Mass. 219, Sec. 248. Clancy vs. Kenworthy, 74 la. 740, Sec. 1164. vs. Piggott, 2 Ad. & EH. 473, Sec. 26i Classon vs'. BilTman, 161 Ind. ©10, Sec. 66. Ctoflin VB. Ostrora, 54 N. Y. 561, Sec. .^l. Clagett vs. Salmon, 5 GiO. & Johns. (Md.) 314, Sec. 77. Clapp vs. Rice, 15 Gray 557, Sec. 114, 270. Clay vs. EdgetPton, 19 0. S. 549, Sec. 61; 67. vs. Freeman, 74 Miss. 81©, Sec. 2S5. vs. Severence, 53 Vt. 300, Sec. 279. CJay Center vs. Williamson, 7& Kan. 485, Sec. W6. Clay Lumber Co. vs. Hart's Branch Coal Co., 174 Mich. 613, Sec. 42. Cleveland Metal Roofing Co. vs. Gaspard, 89 0. S. 185v Sec. 131. Clterk VB. Withers, 2 Ld. Raym. 1072, Sec. 187. Clements' vs. SchuylkiH R. R. Co., 132 Pa. 445i, Sec. 13a. ainton Bank vs. Ayres, 16 0. 283', Sec. 78. Clopton vs' Spratt, 52 Miss. 251, Sec. 99. Clopton, Exr., vs. HaU, Sa Miss. 482, Sec. 9. Cl'ough VS'. Seay, 49 Iowa ll/i:. Sec. 74 Cl'ow vs. Derby, 98 Pa. 432, Sec. 98. ClOwson vs. Barbiere, 4 Sneed 386, Sec. 10. Clute vs. SmaB, 19 Wend 238, Sec. 714. vs. Kinesi, 102 N. Y. 377, Sec. 17. Coan vs. Patridge, 98 N. Y. S. 570, Sec. 53. Cobb vs. Haynes, 8 B. Mon. (Ky.) 1'37, Sec. 263. vs. Page, 17 Plai. 469, Sec. 57. Coburn vs. Townsend, 103 Cal. 233, Sec. 146. Cocks vs. Barker, 49 N. Y. 107, Sec. 126. Cochrum vs. West., 122 Ind. 372, Sec. 244. Cochran vs. Peopte's Ry. Co., 113 Mo. 3Wi, Sec. 135. vs. Walker, S2 Ky. 220, Sec. 276. vs. Ward, 5 Ind. App. 89, Sec. 47. vs. Wood, 29 N. C. 213, Sec. 181. 540 tabijE of cases. (References are to sections.) Cochrane -vs. Gushing, 12it Mass. 210, Sec. 100. Codman vs. Rogers, 10 Pick. 112, Sec. 178. vs. Vt. & C. R. Co., M Blatchf. 165., See. 51. Coe vs. BueWer, 110 Pa. 366, Sec. 6&. vs. N. J. Midland Ry. Co., 31 N. J. Eq. 106, Sec. 245^ va. Vodges, 7a Pa. 383', Sec. 119. Coffin vs. Trustees, 92 Ind. 337, Sec. 16, 57. Cogbum vs. Spence, 15 Ala. 549, Sec. 172. Coggeshall vs. Ruggles, 62 Illl 401, Sec. 282. Cohea vs. Commissioners, 16' Miss. 431, See. 96. Cohen vs. Wright, 22 Cal'. 293, Sec. 145. Cohn vs. Lehmian, 93 Mo. 574, Sec. 193. Cole V9. Dyer, 1 Cromp. & Jerv. 461, Sec. 28. vs. Fox, 83 N. C. 463, Sec. 112. vs. Just-ice, 8 Ala. 793, Sec. 256. vs. Makomb, 66 N. Y. 363, Sec. 259. vs. Merchants' Bank, 60 Ind. 350, Sec. 61. vs. Smith, 29 La. Ann. 55]- Sec. 112. Cole Co. vs. Dallineyer, 101 Mo. 57, Sec. 146'. Coleman vs. Fuller, 105 N. C. 328, Sec. 6. vs. State, 10 Md. 168, Sec. 229, 230. Cdlgrove vs. Talltoan, 67 N. Y. 95, Sec. 23, 80, 116. Colt vs. Root, 17 Mass. 229, Sec. 31. Colter vs. Morgan, 12; B. Mon. (Ky.) 278, Sec. 152. College Park Eltec. Belt Line vs. Ide, 15 Tex. Civ. App. ZI3, See. SI: Colwell vs. Lawrence, 38 N. Y. 74, Sec. 135. Collins vs. Everett, 4 Ga. 266, See. 10. vs. Huffman, 48 Wasih. 1S4, Sec. 197. vs. Mayor, 3 Hun 680, Sec. 145. vs. ProBser, 1 Barn. & Or. 682, Sec. 114t vs. SkiUen, 16 0. S. 382, Sec. 166. vs. Trist, 20 La. Ann. 348, Sec. 10. Collier vs. Betterton, 87 Tex. 440, Sec. IBS', vs. Windham, 27 Ala. 291, Sec. 139: Cdlby vs. Meservey, 85 Iowa 555, Sec. 196, 187. Colquitt vs. Smith, 65 Ga. 341, Sec. 229, Colcord vs. Sylvester, 6 M. 540, Sec. 196. Columbia Amusement Co. vs. Pine Beach Inv. Co., 109 Va. 325, Sec. 195. Columbia Avenue Trust Co. vs. King, 27 Pa, 308, Sec. 23a. Columbia Co. vs. Massie, 31 Oreg. 292, Sec. 154. Columbia, etc., R. R. Co. vs. Braill'aird, 12 Wash. 22, See. 183. Columbus, Hocking Valley & Toliedo Ry. Co. vs. Burke, 54 O. S. 98-, Sec. 193. Columbusi Sewer Pipe Co. vs. Ganser, 58 Mich. 385, Sec. 50. Commercial Bank vs'. Henninger, 105 Pa. 496, Sec. 101. vs. Provident Inst., 59 Kas. 361, Sec. 51. vs. Wood, 56 Mo. App. 214, Sec. 90 Commercial & Farmers Nat. Bank vs. McCormick, 97 Md. 703, Sec. 93. Commissioners of Logan County vs. Harvey, 6 Okl. 629, Sec. 146. TABLE OF CASES. 541 (References are to sections.) Commonwealth vs. Allen, 157 Ky. 6, Sec. 232. vs. Amer. Bonding & Tr. Co., 16 Pa. Super. Ct. 570, Sec. 2a4 vs. BrasBfieW, 7 B.-Mon. (Ky.) 447, Sec. 174. vs. Ches. & Ohio Oaiiia.1 Co., 32 Md. 501, Sec. 245> 259. vs. Comly, 3 Pa. 372, Sec. I'ft7. vs. Drewry, 13 Gratt. (Va.) 1, Sec. 153. vs. DUI, 1 Phila. Rep. 556, Sec. 220. vs. Evans, 74 Pa. 124, Sec. 145. vs: Fidelity & Deposit Co., 180 Fed. 292, Sec. 167. VB. Flemming, 15 Ky. L. Rep. 491, Sec. 232. vs. Godshaw, 13 Ky. L. Rep. 572, Sec. 160. vs. Green-, 138 Mass. 200, See. 1S6. vs. Holtoes, 25 Gratt. 771, Sec. 152. vs. Julius, 173 Pa. 322, Sec. 226. vs. Magndlia Vila Land Co., 163 Pa. 99, Sec. 200. vs. Meyer, 170 Pa. 380, Sec. 208. VH. Overby, 80 Ky. 208, Sec. 232. vs. Pray, 125 Ba. 542, Sec. 224. vs. Rogens, 53 Pa. 470, Sec. 223. vs. Swope, 45 Pa. 535> Sec. 161. vs. Stockton, 5 T. B. Mon. (Ky.) 192, Sec. 164. vs. Teevena, 143 Mass. 210, Sec. 231'. vs. Terry, 63 Ky. 383, Sec. 232. vs. Toms, 45 Pa. 408, Sec. 164. vs. Wistar, 142 Pa. 373, Sec. 182. Comstock vs. Gage, 91 111. 328, Sec. 15. vs. Norton, 36 Mich. 277, Sec. 42. Comparee vs. Brockway, 11 Humph. 365, Sec. W. Comer vs. Baldvcin, 1'6 Minn. 172, Sec. 123. Conger vs. Babbet, 67 Iowa 13, Sec. 10. Conn vs. State, 125 Ind. 514, Sec. 76a, 126. Conaway vs. Sweeney, 24 W. Va. 643, Sec. 30. Connecticut Insurance Co. vs. Scott, 81' Ky. 540, Sec. 107. Connecticut Mutual Life Ins. Co. vs. Scott, 81 Ky. 540, Sec. 53. Connecticut Life Ins. Co. vs. Chase, 72 Vt. 176, Sec. 106, 127. Concord vs. Pillfebury, 33 N. H. 310, Sec. 117. Conner vs. State, 30 Tex. 94, Sec. 232. Connor vs. Corson, 13 S. D. .550, Sec. 176. Cony vs. Barrows, 46 Me. 497, Sec. 177. Connelly vs. Bourg, 16 La. Ann. 108, Sec. 249. Consolidated Co. vs. Musgrave, 1 L. R. Ch. I>iv. 37 (1900), Sec. 279, Conover vs. HiU. 76 III. 342, Sec. 2(73. Conweia vs. McCowan, 53 II. 363, Sec. 245, 250. vst Voohees, 13 0. 523, Sec. 170. Cook vs. Caraway, 29 Kas. 41, Sec. 12. vff. Chapman, 41 N. J. Eq. 1.52, Sec. 196, IW. vs. Freudenthal, 80 N. Y. 205, Sec. 111. vs. Ligon, 54 Miss. 625, Sec. 166. vs. Southwick, » Tex. 615, Sec. 8 542 1ASLE OF CASES. (References are to sections.) Cooke vs. White Com. School Dist., 33 Ky. Law Bep. 926, See. 76a. Coots vs. rarnsworth, 61 Midi. 497, Sec. 112. Coombs vs. Harford, 99 Me. 426, Sec^- 129. Coope vs. Twynam, Turn. & Russ. 426, Sec. 263. Cooper, In re, 22 N. Y. 67, See. 145. Cooper vs. Middleton, 94 N. C. 86', See. 255. \'s. Parker, 176 Ala. 122, Sec. 279. vs. Rhodes, 30 La. Ann. 533, Sec. 18S. Coon vs. MoCormack, 69 Jowa 53S, Sec. 186. Coons vs. Clifford, 58 0. S. 490, See. 295. Coonradt vs. Campbell, 29 Kas. 30 r, Sec. 18S. Co-operative Assn. vs. Rbhl", 32 Kan. 6B3, Sec. 182. Copis vs. Middleton, Turn. & Russ. Ch. Rep. 224, Sec. 3491, Copeland vs. Dixie Lumber Co., i Ala. App. 230, Sec. 1188'. Copeland &. Brantley vs. Cunningham, 63 Ala. 394, Sec. 20, 121, 194. Cornwell vs. Holly, 5 Rich. 47, Sec. 83. Cornell' vs. The Pcoplte, 37 111. App. 4«)0, See. lOS', 164. Corielle vs. Al'lfen, 13 Iowa 289, Sec. 83. Corbett vs. Waterman, 11 Iowa 8i6, Sec. flO. Corporation of Huron vs. Armstrong, 27 Up. Can. (Q. B.) 538, Sea Dili Com Exchange Bank vs. Blye, 102 N. Y. 305, Sec. 212. Corrigan vs. Foster, Admx., 51 0. S. ^5, Sec. 218. Cortelyou vs. Hoagland, 40 N. J. Eq. 1, See. 34. vs. Maben, 40 Neb. 512, Sec. 201. Corkins vs. Collins, 16 Mich. 478, Sec. 41. Corydon Dep. Bank vs. McClure, 140 Ky. 149, See. 8'5. Cosgrove vs. Cumming-s, 195 Pa. 497, Sec. 122. CrosgTove Brewing & Malting Co. vs. Starrs, 5 Ont. 169, Sec. 54. Cosand vs. Bunker, 2 S. D. 294, Sec. 48. Costello vs. Bridges, 142 Pac. 6S7, Sec. 187. Costley vs. Allen, 56 Ala. 198, Sec. 154. Coster vs. Mesner, 58 Mo. 54», Sec. S3. Cotrell's Appeal, 23 Pa. 294, Sec. 249. Cotton vs. Alexander, 32 Kan. 339, Sec. 279. County of Glenn vs. Jones, 146 Cal. 518, Sec. 76b. County of Spokane vs'. ALlen, 9 Wash, 220, See, 152. County Board vs. Bateman, 102 N. C. 52, See. 154. County vs. Tower, 28 Minn. 45, Sec. 154. Coughran ve. Sundback, 13 S. D. 115, Sec. 181. Coulthart vs. Clementson, 5 Q. B. Div. 412, Sec. 7L Court of Probate vs. Smith, 16 R. I. 444, Sec. 223. Covey vs. Neff, 63 Tnd. 391, gee. 246. vs. Sehiesswoht, 50 Colo. 68, Sec. 17. CoverdaJe vs. Alexander, 83 Ind. 503, See. 211. Cowles vs. Peek, 55 Conn. 251, Sec. 16, 62. vs. U. S. Fidelity & Guar. Co., 32' Wash. 120, Sec. 7613. Oowdin vs. Gottgetreu, 55 N. Y. 650, See. 36. Cowenhoven vs. Howell, 36 N. J. L. 323, Sec„ 41. TABLE OF CASES. 543 (References are to sections.) Cowan vs. Badrd, 77 N. C. 201, Sec. 111. VB. Roberts, 184 N. C. 415, Sec. 66, 109. vs. Telford, ."i Lea, (Tenn.) 449, Sec.. 255. Cowdery vs. Hahn, 105 Wis. 436, Sec. 7ea. Cowgill vs. LinviUe, 20 Mo. App. 138, Sec. 248. Cowel vs. Anderson, 39 Minn. 374, Sec. 12&. Cox vs. Brownj SI N. C. 100, Sec. 67. vs. Mobile Co., 37 Alia. 320, Sec. 8». vsi Mulhollan, 6 Mart. (La.) 649, Sec. 187. vs. Taylor's Adm., 10 B. Mon. 17, Sec. 195. Craig vs. Parkis, 40 N. Y. 181, Sec. 63. vs. Phipps, 23 Miss. 240, Sec. 61. Craighead vs. Swartz, 219 Pa. St. 149, Sec. 2S1. Crame vs. Andrews, 10 Goto. 265, Sec. 188. VB. Clamp, 12 Conn. 464, Sec. 169. vs. Pacific Heat & Power Go., 36 Wash. «©, Sec 96. vs. Pbwell', 180 N. Y. 379, Sec. 25. vs. Weymouth, 54 CaL 476, Sec. 1'89. vs. Wheeler, 48 Minn. 207, Sec. 63. Crane Co. vs. Specht, 38 Neb. 1231, Sec. 50. Cramer vs. Titte, 72 Cal'. 12, Sec. 13. Craft vs. Isham, 13 Conn. 28, Sec. 66. Crafts' vs. Mobt, 4 N. Y. 603, Sec. 304. Cragoe vs'. Jones, L. E. 8 Ex. 81, Sec. 102. Cranor vs. Eeardon, 39 Mo. App. 306, Sec. 186. Cranmer vs. McSwords, 26 W. Va. 412, Sec. 282, 283. Cravey vs. State, 26 Tex. App. 84, Sec. 231. Crawford vs. Atlantic Coast Lumber Co., 89 S. C. 456, Sec. 193. vs. Gaulden, 33 Ga. 173, See. 99. vs. Howard. 9 Ga. 314, Sec. 170. vs. Owens, 79 S. C. 59, Sec. 23a. vs. Eicheson, 101 M. 351, Sec. 261. vs. Sterling, 4 Esp. 207, Sec. I'l. vs. Turnbaugh, Trustee, 86 0. S. 43, Sec. 118. Crawn vs. Commonwealth, 84 Va. 282, Sec. 15©. Craythorne vs. Swinburne, 14 Ves. Jr. 164, Sec. 262, 264. Cremer vs. Higginson, 1 Mason 323, Sec. 84, 65. Creswell vs. Herr, 9 Col. App. 185, Sec. 184. vs. Woodside, 15 Col. App. 468, Sec. 201. Crears vs. Hunter, 19 Q. B. Div. 341, Sec. 57. Creager vs. Brengle, 5 Harr. & J. (Md.) 234, Sec. 247. Grim vs. Fitch, 53' Ind. 219, Sec. 31. vs. Fleming, 101 Ind. 154, See. 99. vs. Wilson, 61 Miss. 233, Sec. 103. Crist vs. Burlingame, 6!2 Barb. (N. Y.) 351, Sec. 60. Crittenden vs. Fiske, 46 Mich. 70, Sec. 60, 66. Crisfield vs. State, 56 Md. 192, Sec. 247. 544 TABLE OF CASES. (References are to sections.) Crosby vs. Bonchard, 8a Vt. 66, Sec. 299. vs. Woodberry, 37 Col. 1, Sec. 99. Cross vs. Ballard, 46 Vt. 415., Sec. 117. vs. Rowe, 22 N. H. 77, Sec. 78. vsi. State Bank, 5 Ark. SS'S, Sec. 109. Crow vs. Conant, 90 Mich. 247', Sec. 218. vs. Crow, 53 Ky. 383, Sec. 222. Crowelil vs. Hospital of St. Barnabas, 27' N. J. Eq. 650, Sec. 142. Crooks vs. Propp, 06 N. Y. S. 763, See. 5S. Crook vs. People, 106 EI. 237, Sec. 14S. Cronin vs. Stoddard, 97' N. Y. 271, See. 150. Crounse vs. Syracuse, C. & N". Y. R. R. Co., 32 Hun 497, See. 197. Crouch vs. Edwards, 52 Ark. 499, Sec. 231. Crouse vs. Wagner, 41 0. S. 470, Sec. 264. Croffwell' vs. Labree, 81 Me. 44, 9ec. 74. Crum vs. Wilson, 61 Miss. 233, Sec. 19. Cumming vs. Brown, 43 If. Y. 514, See. 164. Cudahy Packing Co. vs. Shephard, 37 Tex. Civ. App. li, See. 7«. Culver vs. Fidelity & Deposit Co., 149 Mich. 630, Sec. 185. vs. Reno Real Estate Co., 91 Pa. St. 367, Sec. 11, 148. Cummings vs. Gann, 52 Pa. 488, Sec. 209. vs. Little, 451 Me. 183, Sec. 98. Cumberland vs. Pennell, 69 Me. 357, Sec. 167. Cumberland Glass Mfg. Co. vs. Wheaton, 20S Mass. 425, Sec. 49, 66, 67. Cumberland Cojil & Iron Co. v.3. Hoffman, 39 Barb. 16, Sec. 195. Cunningham vs. Finch, 8 N. W. (Neb.) 168, See. 197. vs. Hawkins, 163 Mich. 317, Sec. 122. vs. V/renn, 23 111. 62, See. 128. Curtis, In re, 64 Conn. 501, Sec. 49. Curtis vs. Brewer, 17 Pick. 513, Sec. 185. vs. National Bank, 39 0. S. 579, See. 221. vs. Parks, 55 Cal. 106, Sec. 275. vs. Smallman, 14 Wend. N. Y. 231, Sec. 62. vs. Tyler, 9 Paige 432, Sec. 256. CurtisB vs. Bachman, 110 Cal. 433, Sec. 197. Curiae vs. Packard, 29 Cal. 194, Sec. 96. Currier vs. Baker, 51 N. H. 618, Sec. 273, 27& vs. FeWow-d, 27 N. H. 366, See. 10. Curd vs. Forts, 9 Ky. 119, Sec. 122. Curry vs. Curry, 87 Ky. 667, Sec. 259. vs. Haie, et at, 15 W. Va. 867, Sec. 23. Curtin vs. Patton, 11 Serg. & R. 305, Sec. ir. Gushing vs. Gable, 48 Minn. 3, Sec. 50. Cutler vs. Balitoo, 136 Mass. 337, Sec. 18, 60. Cutter vs. Emery, 37 N. H. 5W, Sec. 267. Cyclone Steam Snowptow Co. vs. Vulcan Iron Wks', 52 Fed. Rep. 920, Sec. 214. C. & W. Goal Co. VB. Liddell', 69 IM. 639, Sec. 40, 46. TABI^ OF CA^ES, 545 (References are to sections.) D Daggitt VB. Mensch, 141 111. 395, Sec. 18.5. Dahlman vs. Hammell, 45 WiS'. 466, Sec. 16, 57. Dair vs. United States, 16 Wall. 1, See. 74, 10», 127. Daly vs. Busk Tunnel Ey. Co., 129 Fed. 513, Sec. 76a. vs. Old, 35 Utah 74, Sec. 16. Bamon vs. Empire State Sur. Co., 161 App. Div. 875', Sec. 106. Damron vs. Sweetser, 16 111. App. .330, Sec. 208. Dana vs. Conant, 30 Vt. 246, Sec. 63. Dana, Executor, vs. Parker, 27 Fed. 268, Sec. 143. Dane vs. Corduan, 24 Cal. 157, Sec. 115. vs. Gilraoire, 51 Me. 544, Sec. 176. Dangel vat Levy, 1 Idaho 722, Sec. 133. Dangler vs. Baker, 36 0. S. 673, Sec. 13, 57, 127. Daniel vs. Ballard, 2 Dana (Ky.) 296, Sec. 267. Daniel' Co. vs. Dickey, & Ga, App. 548, Sec. 38. Daniels, «t aT., vs. Barney, 22 Tnd. 207, Sec. 1<9, 138. Danker vs. Atwood, 119 Mass. 140, Sec. 20, 131. Darst vs. Bat^, 95 III. 493, Sec. 42. Darby vs. Berney Natl. Bank, 97 Ala. 64.S, See. US. Daum vs. Kehnast, 18 0. C. C. 1, Sec. 273. Davany vs. Koon, 45i Miss. 71, Sec. 173. Davenport vs. State Banking Co., 126 Ga. 136, See. 101. Davis vs. Banks, 45 Ga. 138, Sec. 40. vs. Barrington, 30 N. H. 517, Sec. 112. vs. BlackweU, 5 111. App. 32, Sec. 11. vs. Board of Cominissioners of Stokes Co., 72 N. C. 441, Sec. 284. vs. Buckles, 89 Til. 237, Sec. 106. vs. Commissioners, 72 N. C. 441', Sec. 104. vs. Davis, 69 Atl. 876, Sec. 259. vs. GiMebt, 52 N. H. 126, Sec. 135. vs. Harding, 3 Allen, 302, Sec. 215. vs. Hoopes, ,13 Miss. 173, Sec. 280. vs. O'Brj-ant, 23 Tnd. App. 376, See. 183. vs. Old Colony R. R., lOT Mass. 258, Sec. 11. vs Patrick, 141 U. S. 479, Sec. 39, US', 167. VB. People, 1 Gilm. 111. 409, Sec. 87. vs. Shafer, 50 Fed. 764, Sec. 49. vs. Shields, 26 Wend. 341, Sec. 30, 123. vs. Sbatts, 43 Tnd. 103, Sec. 104. vs. South Carolina, 107' U. S. 597, Sec. 230. vs. Toulmin, 77 N. Y. 280, Sec. 274. vs. Weills, 104 U. S. 159, Sec. 5, 16, 48, 50, 61, 65, 68. Davis Sewing Machine Co. vs. Richards, 115 U. S. 524, Sec. 65. Davies vs. Ca,rey, 72 Wash. 537, Sec. 39. vs. Fumiston, 45 Upper Can. (Q. B.) 369, Sec. 16, 57i. vs. Humphries, 6 M. & W. 153, Sec. 269. vs. London & P. Marine Ins. Co., L. E. Ch. Div. 460, Sec. 106. 546 TABLE OP CASES. (References are to sections.) Dawe vs. Morris, 149 Mass. 1«8, Sec. I'lO. Dawson vs. Lee, 83 Ky. 49, Sec. 2i59. vs. State, 3& 0. S. 1, Sec. 152. Day vs. Cloe, 4 Bush 963, Sec. 38. vs. Elmore, 4 Wis. 190. Sec. 09. vs. McPhee, 41 Col. 467, Sec. 187. vs. Ramey, 40 0. S. 446, Sec. 9S. Dayton vs. Lynes, 30 Conoa. 351, Sec. 147. Deal vs. Cochran, 66 N. C. 269, Sec. 81. Dean vs. Rice, 6.^ Kas. 691, Sec. 92. vs. Sedan Milling Co., 19 Caj. App. 28, Sec. 83. vs. TaiUman, 10.5 Mass. 443, Sec. 3fi. vs. Walker, 107 111. 540, Sec. 39. Dean & Co. vs. Collins & Manhood, 15 K. D. 5So, Sec. 23, 90. Dearborn vs. Richardson, 108' Mass. 565, Sec. 206. Dea-re vs. Soutten, L. R. 9 Eq. 161, Sec. 259: Deardorff vs. Foresman, 24 Ihd. 481; Sec. 111. Deatherage vs. Sheidlby, 50 Mo. App. 490, Sec. ISS, Deck vs. Works, 57 How. Pr. 292, Sec. 67. Detfker vs. Decker, 9 Ala. App. 241, Sec. ISl; 220. Dedham Bank vs. Chickering, 3 Pick. 335, Sec. 129. Dedge vs. Branch, 94 6a. 37, Sec. 151. Dedriek vs. Den Bleyker, 86 Mich. 475, See. 90. Deering vs. Winchelsea, 2 B. & P. 270, Sec. 262, 263', 268'. Deering & Co. vs. Mortell, 110 N. W. 86, Sec. 66. \ Deer Lodge Co. vs. At., 3 Mont. 168, Sec. 231. vs. U. S. Fid. & Guar. Co., 42 Mont. 3il5, Sec. 122, 148, 1149. 316, DeGreiff vs'. Wiason, 30 N. J. Eq. 436, Sec. 176. DeJeme*te vs. Fidelity & Casualty Co., 98 Ky. 568, Sec. 239. Deis'her vs. Gehre, 46 Kan. 563, Sec. 1-88. Deitzler vs. Mishler, 37 Pa. 82, See. 248. DeJiaware Ins. Co. vs. Pa. Fire Ins. Co., 12i6 Ga. 380, Sec. 43-. Delaware, L. & W. R. R. Co. vs. Oxford Iron Co., 38 N. J. Eq. 151, See. 283. Delaware Co. Nat. Bank vs. King, 95 N. Y. S. 954, Sec. 48, 68. Demeritt vs. Bickford, 58 N. H. 583, Sec. 34. Demott vs. Field, 7 Cow. 58', Sec. 119. vs. Stockton, 32 N. J. Eq. 124, Sec. 255. Dempsey vs. Bush, 18 0. S. 376, Sec. 249, 261i Denio vsi State, 60 Miss. 949, Sec. 76, 152. Denton vs. Butler, 99 Ga. 264, Sec. 106. Dennie vs. Smith, 1201 Mass. 143, Sec. 177. Dennis vs. Gillespie, 24 Miss. 581', Sec. 262. Denison University vS'. Manning, 65' 0. S. 139, Sec. 90. Dennison vsi. Barney, 49 Colo. 442, Sec. 45. vsi. Mason, 36 Me. 431, Sec. 182'. Denier vs. Myers, 20 0. S. 336, Sec. 246. Denny vs. Reynoldsi 24 Ind. 248, Sec. 216. TABLE OF CASES. 5.47 (References are to sections.) Itent vs. Wait, 9 W. Va. 41, Sec. 254. Deoboll'd vs. Opperman, 111 N. Y. 5311, Sec. 16. Derosseit va: Bradl'ey, 63 N. C. 17, Sec. 271. Desot vs. RosB, 95 Mich. 81, Sec. 25'9. Despres vs. Foh, 134 III. App. Ill, Sec. 76. Detroit Sav. Bank vs. Ziegler, 4'9' Mich. 167, Sec. 133, Devol va. Dye, 6 Ind. App. 257, Sec. 188, Dewey vs. Clark Invest. Co., 48 Minn. 130, Sec. 63. vs. Kavanaugh, 45 Neb. 233, Sec. 163. va. Reed, 40 Barb. 16, Sec. 72. vs. State, 91 Ind. 173, Sec. 76a, 131. Dexter vs. OMander, 80 Ala. 262', 8ec. 45. Dey vs. Martin, 78 Va. 1, Sec. 73. Dickason vs. Bel, 13 La. Ann. 249, Sec. 103'. Dickerson vs. Ripley, 6 Tnd. 128, See. 93. vs. Derricks'On, 3& 111. 574, Sec. 67. DieM vs. Davis, 75 Kas. 38', Sec. 81. vs. Friesfcer, 37 0. S. 473, Sec. 192. Dignowitty vs. Staacke, 25 S. W. (Tex. Civ. App.) 824, Sec. IBS. DiHman vs. NadeJhoffer, ISO HI. 121, See. 9, 63. Dils vs. Cecil, 4 Bush (Ky.) 979, Sec. 99. Dilon vs. RusselH, 5 Neb. 484, Sec. 116. Dilley vs.) State^ 3 Idaho 2SS., Sec. 228. Dine vs. Donnelly, 12il S. W. 686i, Sec. 24Si. i Dinsmore vs. TidbaH, 34 0. S. 411, Sec. 15, 106. ' Diukina vs. Bailey, 23 MisB. 284, See. 220. District of Columbia vs. Gallaher, 124 V. S. 505, Sec. 128. vs. Petty, 37 App. D. C. 166, Sec. 162. District of Taylor vs. Morton, 37 Iowa 553, Sec. 166, 167. Dix vs. Morris, 1 Mo. App. 9S, Sec. 218. Dixon vs. Spencer, 59 Md. 246, Sec. 83, Doane vs. Eldridge, li6 Gray 254-, Sec. 15-1. DobeOI vs: Hutchinson, 3 Ad. & Ell. 355, See. 29. Dobie vs. Fidelity & Casualty Co., 95 Wis. 540, See. 281. Dobbs vs. The Justices-, 17 Ga. 624, See. 174. Dock vs. Boyd, 93 Pa. 92, Sec. 40. Dodd vs. The State, IS Ind. 56', Sec. 169. vs. Vucovieh, 38 Mont. 188, Sec. 79. vs. Wilson, 4 Del. Ch. 399, Sec. 249. vs. Winn, 27 Mo. 501, Sec. 114. Dodge vs. Zimmer, 110 N. Y. 43', Sec. 42i. Dodgson vs. Henderson, 113 111. 360, Sec. 81, 88. Doepfner vs-. The State, 36 Ind. I'll, Sec. 168. Dolbeer vs. Livingston, lOO Cal. 617, Sec. 124. Dole vs. Young, 24 Pick, 250, Sec. 1, 48. Doll vs. Cnime, 41 Neb. 656, Sec. 131. Domcsitic S. M. Co. vs. Jackson, 15 B. J. Lea 416, Sec. 15. Donley vs. Camp, 28 Ala. 659, Sec. 61. 548 TABLE OF CASES. (References are to sections.) Donnell vs. ManBon, 109 Mass. 576, Sec. 143. Donahue vs. Johnson, 9 Wash. 187, Sec. 107. Donnerberg vs. Oppenheimer, 19 Wash. 200, Sec. 110. Doran vs. Butler, 74 Mich. 643, Sec. 171. vs. DaviS', 43 Iowa S6, Sec. 286. Dore vs. Covey, 13 Oal. 502:, Sec. 181. Dorman vs. Bigelow, 1 Flla. 281, Sec. 27. Dorsey vs. Fidelity & Casualty Co., 98 G-a/. 456'i Sec. 239. Dorwim vs. Smith, 36' Vt. 69, Sec. 42. Dothard vs. Sheid, 69 Ala. 135, Sec. 208. Dougherty vs. Dore, 63 Cal. 170, Sec. 196. Doughty vs. Savage, 28 Conn. 146, Sec. IB. Dougllasa vs. Ferris, 138 N. Y. 102, Sec. 2851 vs. Kessler, 5T Iowa 68, Sec. 224. vsi Rathbone, 5 Hill 143, Sec. 68. vs. Reynolds', 7 Pet. 113, Sec. 18, 60, 63, 68, 9&. Dover vs. Twombly, 42 N. H. 59, Sec. 153. Dowell vs. Richardson, 10 Ind. 573, Sec. 209. Downer vs. Chcsebrough, 36 Conn. 39, Sec. 47. Dowldng vs. Polack, 18 Cal. 625', See. 163. Dowbiggen vs. Bourne, 2 Young & Collier 462, Sec. 249. Downer vs. Baxter, 30 Vt. 467, Sec. 283. Dows vs. Swett, 120 Mass. 332, Sec. 42. Downey vs'. O'Donnell, 86 111. 49, Sec. 135. Doyle vs. Nesting, 37 Col. 522', Sec. 61. Drake vs. Seaman, 97 N. Y. 234, Sec. 27. vs. Smythe, 44 Iowa 410, Sec. ie». Draper vb. Weld, 13 Gray 580, Sec. 114. , vs. Wood, 112 Massi. 315, Sec. 74. Draughan vs. Bunting, 9' Ired. (N. C.) 10, Sec. 34, 74. vs. State, 35 Tex. Cr. Rep. 51, Sec. 231. Drew vs. Lockett, 32 Beav. 499, Sec. 250. Drinkwine vs. City of Eau Claire, 83 Wis. 428', See. 191. Drolesbaugh vs. Hill, 64 O. S. 2S7, Sec. 164. Drumheller vs. Amer. Sur. Co., 30 Wash. S30, Sec. 7ea. Drummond vs. Prestman, 12 Wheat. 515, Sec. 16, 50. Drury vs. Young, 58 Md. 546., Sec. 30. Dry vs. Davy, 10 Ad. & Ell. 30, Sec. 32. Dubois vs. Mason, 127 Mass. 37, Sec. 8. Dudley vs. Buckley, 68 W. Va-. 630, Sec. 248. Duflfy vs. Wunsoh, 42 N. Y. 243', Sec. 38'. Dugau vs. Champiom Coal Co., 105 Ky. 821, Sec. 22. vs. CommonweaJJth, 69 Ky. 305, Sec. 228. Dugger VB. Wright, 51 Ark. 232, Sec. 210, 363. Duker vs. Franz, 7 Bush (Ky.) 273, Sec. 73. Dun vs. Garrett, 93 Tenn. 650, Sec. 109. Dunn vs. Parsons', 40 Hun 77, Sec. 98. vs. Slee, Holt N. P. 399^ Sec. 88. TABLE OF CASES. 549 (References are to sections.) Ihinn vs. Sparks, 1 Ind. 3S7', Sec. 2(77. Dunlap vs. Eden, 16 Ind. App. 575, See. 125. \s. Foster, 7 Ato. 734, Sec. 263. vs. WiHett, 153 N. C. 317, Sec. 29. Duncan vs. North & South Wales Bank, 6 Appeal Coses 1, Sec. ZHi. Bung vs. Paa-ker, 52 N. Y. 496, Sec. 25. Dunterman vs. Storey, 40 Neb. 447, Sec. 190. Dupee vs. Blake, 148 M. 4S3, Sec. 92. Durbin vs. Kuney, 19 Ore. 71, Sec. 269. Durein vs. State, 38 Kan. 4SSl, Sec. 231. Durnherr vs. Rau, 18.5 N. Y. 210, Sec. 1»1. Durham vs. Cnaig, 79 liid. 117, Sec. 255. Dussol vs. Bruguiere, 50 Cal. 456, Sec. 275. ' Dustin vs. Hodgen, 47 III'. 125, Sec. 50. Dwelley vs. Dwelley, 14Si Mass. 509, Sec. 128. I>wenger vs. Geary, 113 Ind. 106, Sec. 128. Dye vs. Dye, 21 6. S. 86', Sec. 96. Dyer vs. Gibsom, 1® Wis. 557, Sec. 42. Earle vs. Earle, 4i9 N. Y. Super. Ct. 57, Sec. 181. East Bridgewater Sav. Bank vs. Bates, 191 Mass. I'lO, Sec. 68, Easter vs. White, 12 0. S. 2!1I9, See. 34. Easterly vs. Barber, 66 N. Y. 433, Sec. 278. Eas-tem Eailroad Co. vs. Loring, 136 Mass. 381, Sec. ISSL Eastman vs. Curtis, 4 Vt. 616, Sec. 147. vs. Foster, 8' Met. 1®, Sec. 256. Eastwood vb: Kenyo-n, 11 Ad. & EII. 438, Sec. 31. Eaton vs. Littlefield, 147 Mass. 122, Sec. 138. vs. Mayo, 118 Mass. 141', Sec. 58. vs. Waite, 49 N. Y. 57, Sec. 181. Eberhardt vs. Wood, 2 Tenn. Ch. 488, See. 277. Ecker vs. Bohn, 45 Md. 278, Sec. 45. Eddy vs. Davidson, 42 Vt. -56, Sec. 37. vs. Moore, 23 Kan. I'l®, Sec. 201. VBv Sturgeon, 15 Mo. ITO, Sec. 96. Edgerly vs. Emerson, 23 N. H. 556, Sec. 24ft. vs. Lawson, 176 Mass. 551, Sec. 51. Edmonds vs. Sheahan, 47 Tex. 44.3, Sec. 271. Edmonson vs. Potts' Admr., Ill Va. 79, Sec. H6. Edmonston vs. Drake, 5 Pet. 624, Sec. 65. Edmunds vs. Harper, 31 Gratt. (Va.) 637, Sec. 117. Edwards vs. Bodine, 11 Paige 223, Sec. 197. v». Coleman, « T. B. Mon. (Ky) 567, See. 81, 9^ v». Edwards, 3il HI. 474, Sec. 196. vs. Pomeroy, » Cal. 254, Sec. 201. vst United States', 103 U. S. 471', Sec. 143. 550 TABtM OF CASES. (References are to sections.) Edwards Co. vs. Goldstein, 80 O. S. 303, Sec. 202. Egbert vs. Hanson, TO N". Y. S. 388, Sec. 273. Egremont vs. Benjamin, 125 Mass. 13, Sec. 160. Eilbert vs. Finkbeiner, 68 Pa. St. 243, Sec. 8, 10. Einstein vsl Marshall', 58 Ala. 153', Sec. 5». Elder vs. Kutner, 97 Cal. 490, Sec. 200, 204. Electric Appliance Co. vs. U. S. Fidelity & Gu'ar. Co., 110 Wis'. 434, Sec. 1'2&, 181, 243.. EUzalde vs. Murphy, 1«3 Cal. 68'1, Sec. 218, 222. Elkin vs. People, 4 M. 207, Sec. 157. Ellicott vs. Warford, 4 Md. 89, Sec. 227. Ellesmere Brewing Co. vs. Cooper, 1 Q. B. L. R. 76, Sec. 263. Ellis vs. Felt, 206 Mass. 472, Sec. 38. vs. Johnson, 83 Wis. 394, Sec. 217. vs. Jones, 70 Miss. 60, Sec. 66. vs. Wilmot, L. R. 10 Ex. 10, Sec. 100. Ellis, et al., vs. Johnson, 96 Ind. 38'3, Sec. 23'. Ellison vs. Wisehart, 29 Ind. 32, Sec. 38. Elliot* vs. Black, 45 Mo. 372, Sec. 2a2. vs. Brady, 192 K Y. 221, Sec. 117. vs. Giese, 7 Harr. & J. 4157, Sec. 27. vs. Jenness, I'll Mass. 29', Sec. 45. Ellsworth vs. Harmon, 101 111. 274, Sec. 51. Ellwell vs. Seattle Scandinavian Fish Co., 2 Alaska 617, Sec. 202. Ellwood Mfg. Co. vs. Rankin, 70 Iowa 403, Sec. 197. Ellyson vs. Lord, 124 Iowa 125, Sec. 137. Eltod vs. Gastineau, 124 Ky. 609, Sec. 274. Emeirine vs. O'Brien, 36 0. S. 49il, Sec. 97. Emerson vs. Slater, 22 How. (U. S.) 28, Sec. 39-. Emerson Mfg. Co. vs. Rustad, 120 N. W. 1094, See. 66. Emery vs. Baltz, 94 N. Y. 408, See. 71. vs. Burbank, 168 Mass. 326i, Sec. 47. Emmitt vs. Brophy, 42 0. S. 82, Sec. 142. Empire State Surety Co. vs. Carroll County, 1 94 Fed. 593, See. 23a, 122> 149. VB'. Lindenmeier, 54 Colo. 497, Sec. 70. Engler vs. People's Fire Ins. Co., 46 Md. 322, Sec. 123, 130. English vs. Darley, 2 Bos. & Piil. 61, Sec. 100. vs. Landon, 181 HI. 614, Sec. 83. vs. Siebert, 49 Mo. App. 568', Sec. 114. Ennis vs. Waller, 3 Black. (Ind.) 472, Sec. 22. Enos vsi. Anderson, 40 Colo. 395, Sec. 31'. Enright vs. Falvey, L. R. 4 It. 397, Sec. 107. Ensley vs. HoUingsworth, 170 Ah. 396, Sec. 45'. Enterprise Hotel Co. vs. Book, 48 Oreg. 58, Sec. 76a. Epenbaugh vs. Gooeh, 15 Ky. L. Rep. 576, Sec. 196'. Erfurth vs. Stevenson, 71 Ark. 199, Sec. 76a. Erie Co. Sav. Banlc vs. Coit, 104 N. Y. 532, Sec. 57. Ernst Bros. vs. Hogue, 86 Ala. 502, Sec. 213. TABLE OF CASES. 551 (References are to sections.) Erwin vs. Down®, 15 N. Y. 576, Sec. 104. EsWeman vs. Boltenius, 114 Pa. 269, Sec. 268. Estate of Ramsay vs. Whitbeck, 163 111. 550, Sec. 16. Estey vs. Harmon, 40 Mich. 645., Sec. 218. Eureka Stone Co. vs. First Chiristian Church, 8© Ark. 212, Sec. 76b, 82. Evans' vs. Bell, 45 Tex. 56&, Sec. 68. vs. Brembridge, 8 BeG. M. & G. 100, Sec. 111. vs. Comm, 8 Watts (Pa.) 308, Sec. 177. VB. Daughtry, 84' Ala. 68, Sec. 109-. v». Graden, 125 Mo. 72, Sec. 73, 79. vs>. Hoarc, L. R. 1 Q. B. 503, Sec. 30. vs. Keeland, 9 Ala. 42, Sec. 15, lOS'. vs. Lawton, 34 Fed. Rep. 23S, Sec. 76. vs. McCormick, 167 Pa. 247, Sec. 66. vs. Populus, 2i La. Ann. 121; Sec. 145, vs. State Bank, 13 Ala. 787, Sec. 174. vs. Taylor, 60 Tex. 4212, Sec. 217. Evansville Nat. Bank vs. Kaufman, 93 N. Y. 27S, Sec. SS. Evarts vs. Steger, 6 Ore. 55., Sec. 121. Eversou vs. Geire, 122 N. Y. 290, Sec. 51. Ewan vs. Brooks, Waterfield Co., 95 0. S. 596, Sec. 8, 10. Excellsior Needle Co. vs. Smith, 61 Conn. 56, Sec. 49. Exchange Bank vs. McDill, 56 S. C. 565, Sec. 96.. vs. McMillan, 76 S. C. 561, Sec. 96. Executors of White, 30 Vt. 338', Sec. 279. Expanded Metal Co. vs. Bradford, 177 Fed. 604, Sec. 188. Ex Parte Banks, 185 Alia. 275, Sec. 46. Bishop, 15 Ch. Div. 400, Sec. 271. Garlland, 4 Waia. 333, Sec. 145. Gifford, 6 Ves. 805, Sec. liOa, 114. Harris, 62 Ala. 8^^, Sec. 14S. Henderson, 6 Fla. 279, Sec. 180. Jacobs, L. R. 10 Ch. 21\1, Sec. 100. Kerwin, 8 Cow. 118, Sec. 20. Smith, 3 Bro. C. C. 1, Sec. 102. Snowden, In re, 17 Ch. Div. 44, Sec. 269. Waring, eit al., 2 Glyn cS: Jameson 404, Sec. 256. Yates, 2 DeG. & J. 191, Sec. 75. Eyre vs. Hollier, Lloyd & Gould 250, Sec. 73. Eyster's Appeal, 4 Harris 372, Sec. 166. Fahnestock vs. Gi.Lham, 77 111. 637, Sec. 2111. Fahnestock's Appeal, W>4 Pa. 46, Sec. les. Pain vs. Turner, 96 Ky. 634, Sec. 42. Pair vs. PengelJy, 34 Up. Can. (Q. B.) 611, Sec. 82. Paires vs. Cockerell, 88 Tex. 428, Sec. 276. VB. liodanc, 10 Ala. 50, Sec. 36. 552 TABLE OF CASES. (References are to sections.) FairehUd vs. HodggS', 14 Wash. 1L7', Sec. Ii6<3. vs. Keith, 29 O. S. 156, Sec. im. vs. Northeastern Mutl. Life Assn., 5'r Vt. 613, Sec. 142. Falconer vs. Shores', 37 Ark. 386, See. ISO. Fales vs. McDonald, 32 E. I. 406, Sec. 27a. Ball/ River Nat. Bank vs. Slade, 1.53 Mass. 416, Sec. 11'8. Fambro vs. Keith, li22 S. W. 40, Sec. 83. Famulener vs. Anderson, 15 0. S. 4*73, Sec. 20, 100. Fanning vs. Murphy, 126 Wis. 538, Sec. 81, 83, 90. Farebrother vs. Simmons, 5 Bar. & Aid. 333, Sec. 23. vs. Wodehouse, 23 Beav. 18, Sec. 250. Farmers Bank vs. Braden, 145 Pa. 473, Sec. 106. vs. Hunt, 1B4 N. C. 171, Sec. 23a. vs. Raynolds, 13 O. 85, See. 99. vs. Teeters', 31 O. S. 36, Sec. 274. Farmers Loan & Trust Co. vs. Lord, 41 Okl. 569, See. 185. Farmers & Traders Bank vs. Fidelity & Dep. Co., 22 Ky. L. Rep. 32', Sec. vs. Harrison, 57 Mo. 503, Sec. 83. Farmington vs. Hobart, 74 Me. 416, Sec. 142. vs. Sbamley, 60 Me. 472^, Sec. 106, 162. Farrar vs'. Kramer, 5 Mo. App. 187, Sec. 76i Farris vs'. MathewSi 149 Ky. 45SI, Sec. 203. Farrow vs. Respe.8S, 11 Irod. Law (N. C.) 170, Sec. 61, 67. Farwell vs. Smi'th, 12 Pick. 83, Sec. 60. Fassbender vs. Amer. Sur. Co., 122 N. Y. S. 442', Sec. 220. Fassnacht vs. Erasing Gagen Co., 18 Ind. App. 80, Sec. 106. Faulkner vs. Faulkner, 73 Mo. 327, Sec. 132. Faurot vs. Gates, 86 Wis. 569, See. 273. Fawcett vs. Freshwater, 31 0. S. 637, Sec. 83. Fawcetts' vs. Kimmey, 38 Ala. 261', Sec. 2'47. Faiwkner vs. Baden, 89 Ind. 58'7, Sec. 210. Fay vs. Edmistoni, 26' Kan. 430, Sec. 176. vs. Richardson, 7 Pick. 9il, Sec. 123. vs. Tower, 58' Wis. 286, Sec. 94. Feams.ter vs. Withrow, 12 W. Va. 611, Sec. 282. Fearons vs. Wright, & Ky. L. Rep. 747, See. 184. Faatherstone vsl Hendrick, 50 111. App. 497, Sec. 57. Feemster vs. Anderson, 6 T. B. Mon. (Ky.) 537, Sec. 185. Fegley vs'. Jennings, 44 Fla. 203, Sec. 61. Fehlinger vs. Wood, 134 Pa. 517, Sec. 40. Feigert vs. State, 31 0. S. 432; Sec. 163', 172. Felton vs. Bissell, 25 Minn. IB, Sec. 280. Fennell va. McGowan, 58 Missi 2161, Sec. 90. vs. McGuire, 21 Up. Can. (C. P.) 134, Sec. 59, 71. Fenter vs. Obaugh, 17 Ark. 71, Sec. 105. Fergus Falls vs. Illinois Surety Co., 112 Minn. 462, Sec. 76a. Ferguson vs. Glidwell, 48 Ark. 195, Sec. 202. vs. KinnouU, 9' CI. & Fin. 251i, Sec. !&». vs. Turner, 7 Mo. 4OT, Sec. 99. TABLiE OF CASES. 553 (References are to sections.) Ferrell vs. Maxwell, 28 0. S. :«3, Sec. 34, 265. vs. Millioan, 1.56 S. W. 230, See. 32. Ferrer TS. Barrett, 4 Jones Eq. (N. C.) 435., Sec. 270. Ferry vs. Burehards, 21 Conn. 997, See. 149. Fertig vs. Bueher, 3 Pa. 308, Sec. 111. Fessenden vs. Summers, 62 Cal. 486, Sec. 8, 10. Fttrow vs. Wiseman, 40 Tnd. 148, Sec. 11. Fewlaas vs. Kecshan, S8 Fed. Kep. 573, Sec. 71, 119. Fidelity Mutual Life Ins. Assn. vs. Dewey, 83 Minn. 3i&9, Sec. 7i6, IW. Fidelity & Casualty Co. vs. Grays, 76 Minn. 450, Sec. 242. vs. Eiohhoff, 63 Minn. 170, Sec. 243. vs. Gate City Nat. Bank, 97 Ga. 634, Sec. 240. vs. Lawler, 64 Minn. 144, Sec. 34. Fidelity & Deposit Co. vs. Agnew, 152 Fed. 955, Sec. 76b. vs. Aultman, 58 Fla. 288, Sec. 144. vs. Buckley, 75 N. Tl. 506, Sec. 2179. vs. Butlea:, 180 Ga. 225, Sec. 243a. vs. Colvin & Jackson, S3 Mo. App. 204, Sec. 139. vs. Commonwealth, 104 Ky. 570, Sec. Ii55. vs. Moshier, 151 Fed. 806, Sec. 106. vs. Phillips, 84 Atl. 432, Sec. 263. VB. Robertson, r36 Ala. 370, Sec. 7®a, '7eb. vs. Singer, 50 Atl. Rep. 518, Sec. 243. vs. Sousley, 151 S. W. 3S3, Sec. 249. Fidelity & Guaranty Co. vs. Western Bank, 29 Ky. L. R. 63©, Sec. 2140. Fidler vs. Hershey, 90 Pa. 363, Sec. 116. Field vs. Holland, 6 Cranoh 8, Sec. 118. Fielding vs. Wafcerhouse, 8 Jones & Spen. 424, Sec. 981. Files vs. Reynolds, 66 Ark. 314, Sec. 143. Finch va. State, 71 Tex. 52, See. 1S8. Findlay vs. Hosmer, 2 Conn. 350, Sec. 252. Findley vs. Hill, 8 Ore. 247, Sec. 84. Finnell vs. Jas. H. Goodman Co. Bank, 156 Cal. IS, Sec. 24S. Finney vs. Condon, 86 111. 80, Sec. 76b. Finnucan vs. Feigenspan, 81 Conn. 378, Sec. 49, 60. Fiola vs. Ainsworth, 63 Neb. 1, Sec. 123. Fire Assn. of Phila. vs. Ruby, 49 Neb. S«4, See. 176. Fire, etc.. Assurance Co. vs. Thompson, 68 Cal. 208, Sec. 106. Fireman's. Ins. Co. vs. Wilkinson, 35 N. J. Eq. IW, Sec. 86 Firmian vs Blood, 2 Kans. 496, Sec. 8. First Commercial Bank vs.. Valentine, 209 N. Y. 145, Sec. 2115. First Mass. Turnpike Co. vs. Feld, 3 Mass. 201, Sec. 141. First Nat. Bank vs. Babcock, 94 Cal. 96, Sec. 67. vs. Carpenter, 41 Iowa 518, See. 65.. vs.. Chalmers, 144 N. Y. 432, Sec. 43. vs. Cheney, 114 Ala. 5S6, Sec. 90. VS'. Fidelity & Dep. Co., 145 Ala. 335, Sec. 76b. TO. Finck, 100 Wis. 446, Sec. 23. 554 TABtiE OF CASES. (References are to sections.) First Nat. Bank vs. Fiske, 133 Pa. 241, Sec. 4-9. vs. Games, 87 Ky. 597, Sec. 112. vs. Homesly, 9» N. C. 531, Sec. 11©. vs. JohnBon, 138 Mich. 700, Sec. 15. v». Kittle, 69 W. Va. 171, Sec. 99. vs. Lineberger, 86 N. C. 4'54', Sec. 82. vs. Marshall, 73 Me. 79, Sec. 10. V3'. Mattingly, 92 Ky. 650, Sec. 15-. vs. Payne, 111 Mo. 291, Sec. 8'. vs. Powell, 149 S. W. 1096, Sec. 99, lOi: vs. Rogers, 18 Minn. 407, Sec. 387. vs. Samuelson, 82 Keb. 532, See. 129. vs. Schreiner, 110 Pa. 188, Sec. 101. vs'. TajyloT, 38 Utah 516, Sec. 15. VB. 'VWheeter, 13 Tex. Civ. App. 489, Sec. 255. vs. Wood, 71 N. Y. 405, Sec. im. Firs.t. Presbyterian Church vs. Housel, llS 111. App. 230, Sec. 76b. Piret State Bank vs. Stevens Land Co., 119 Minn. 209, Sec. 181^ 186. Fish vs. Glover, 164 HI. 86, Sec. 115. Fishback vs. Weaver, 34 Ark. 569, Sec. 253. Fishbum vb'. Jones, 37 Ind. 119, Sec. 105, 127. Fiaher vs. Columbia Bldg. & Loan Assn., 59 Mo. App. 430, Sec 24&. vs. Spillmaji, 85 Kan. 552, Sec. 90. Fisk & Co. vs. Rickel, 108 Iowa 370, Sec. 48. Pitcher vs. Griffiths, 103' N. E. 471, See. 251. Fitzgerald vs. Staples', 88 111. 234, Sec. 20, 121. Fitzgerald Spear Co. vs. Kelly, 81 N". J. L. 6, Sec. 3&. Fitzpatrick vs. Todd, 79' Ky. 524, Sec. 188. Fitzpatrick'si Admr. vs. Hill, 9 Ala. 783, See. 254. Pixel vs. Tallman, 116 N. Y. S. 639, Sec. 208. Flamnagan vs. Cleveland, 44 Neb. 58', Sec. 184, 186, 1'90. Flannigan vs. Erwin, 173 m. App. 452, Sec. 212. Fleming vs. Harden, 126 N. C. 430, See. 83. vs. Odum, 59' Ga. 362, Sec. 100. Flentham vs. Steward, 45 Neb. 640, Sec. 67. Fletcher vs. Austin, 11 Vt. 447, Sec. 74. vs'. Menken, 37 Ark. 206, Sec. 254. Floumoy vs. Jeffersonvjlle, 17 Ind. 169, Sec. IW. Floyd vs'. Andiereon, 5- Okl. Cr. 65, Sec. 2O0. vs. Hamilton', 33 Ala. 235', Sec. 2081 Foerderer vsi. Moors, 91 F. 476, Sec. 98. Fogel vs. Dussiault, l'4'l Mass. 154, See. 181. Fogg Co. vs. Bartletfc, 76 Atl. 380, Sec. 82. Follansbee vs. Johnson, 28 Minn. 311, Sec. 142. Folsom vs. Carli, 5 Minn. 333', Sec. 249. Folz vs. Tradesman's Trust & Sav. Fund Co., 201 Pa. 583, Sec. 70. Fond-du-Lac Harrow Co. vs. Bowles, 54 Wis. 426, Sec. 76'. v». Haskins, 51 Wis. 136, Sec. 69. TABLE OF CASES. 555 (References are to sections.) Foo Lang vs. Ammoain Surety Co., 146 N. Y. 291, See. 186. Forbes vs. Jackson, 19 Ch. D. 615, Sec. 244, 250. Ts. Keyes, 163 Mass. 38, Sec. 222. vs. McHugh, 152 Mass. 412, Sec. 217. Ford vs. Beard, 31 Mo. 459, Sec. 82. vs. Beech, 11 Q. B. 852, Sec. 93. vs. Loomis, 62 Iowa 586, Sec. 197. vs. MoLain, 164 Mo. App. 174, Sec. 16. Forest County vs. United Surety Co., 149 Wis. 323, Sec. Wi. Forniquet vs. Tegarden, 24 Miss. 96, Sec. 139. Forst vsi. Leonard, 112 Ala. 296, Sec. 125. Foster vs. Barney, 3 Vit. 60, Sec. 68. vs. Clark, 19 Pick. 329, Sec. 139. vs. Commonwealth, 35 Pa. MS, Sec. 222. vs. Davis, 46 Mo. 268, Sec. 16«. vs. Epps, 27 111. App. 235, Sec. ISS. vs. Hooper, 2 Mass. 572, Sec. VV9. vs. MettS', 55 Miss. 77, Sec. 170. vs. Trustees of Athenaeum, 3 Ala. 302, Sec. 249. Foster, Admx., vs. Wise, Admr., 46 0. S. 20, Sec. 216. Fountain vs. Bigham, 235 Pa.. 35, Sec. 14. Fourth Nat. Bank vs-. Mayer, 96 Ga. 728, Sec. 208. vs. Spinney, 47 Hun 293, Sec. 126, 132. Fowler vs. Alexander, 1 Heisk. (Tenn.) 425, See. 112. vs. Allen, 32 S. C. 209, Sec. 74. vs. Brooks, 13 N. H. 240, Sec. 94. vs. Gordon, 5 Ky. L. Eep. 332, Sec. 187. Fowler Nat. Bank vs. Brown, 19 Ind. App. 433, Sec. 58. Frahm vs. Walton, ISO Cal. 396, Sec. 193. Frank vs: Edwards, 8 Welsh. H. & G. 214, Sec. 132. Frankel vs. Stern, 44 Cal. 1G8, Sec. 208. Franklin Ave. Sav. Institute vs. Board of Education, 75' Mo. 408, Sec. 128. Franklin Bank vs. Cooper, 36 Me. 1Y9, Sec. 15, 127. vs. Stevens', 39 Me. 532, Sec. 15i 106. Fransioli vs. Thompson, 55 Wash. 259', Sec. 7'6a. Eraser vs. Little, 13 Mich. 195, Sec. 214. Fray vs. Blackburn, 3 Best & Sm. 576, Sec. 168. Frazer vs. Jordan, 8 El. & Bl. 303, Sec. 93. Freaner vs. Yingling, 37 Md. 491, Sec. 98. Fredericks vs. Board of Health of Hobofcen, 82 N. J. L. 200, Sec. 145. Freeholders vs. Wilson, 1.6 N. J. L. 110, Sec. 156. Freeland vs. Compton, 30 Miss. 424, Sec. 84. Freeman vs. Davis, 7 Mass. 200, Sec. 210. Frelinghuysen vs'. Baldwin, 1'6 Fed. Hep. 452, See. 107. French vs. BateS', 149 Mass. 73, Sec. 70. vs. Hicks, 52 Tex. Civ. App. 427, Sec. 23a. VB. Marsh, 29 Wis. 649, See. 63. vs. Eyam, 104 Mieh. 625, Sec. I'lO. 556 tabijE of cases. (References are to sections.) Priberg vs. Donovan, 23 111. App. 58, Sec. 246, 263. Friedlander v&. N. Y. Plate Glass Co., 56 N. Y. S. 563, Sec. 52. Friedline vs. State, 93 Ind. 360, Sec. 231. Friedman vs. Lemle, 38 La. Ann. 664, Sec. 188. Friend vs. Smith Gin Co., 59 Ark. 86, Sec. 98. Friendly vs. Elwcrt, 57 Ore. 509, Sec. 28. vs. National Surety Co., 46 Wast. 7T, Sec. 78. Frink vs'. Peabody, 26 HI. App. 390, Sec. 274. vs. Southern Express Co., 82 Ga. 33; Sec. 130, 137. Frohardt Bros. vs. DuiT, 196 Iowa 144, Sec. 39. Froude vs. Bishop, 49 N. Y. S. 955, Sec. 83. Frost vs. Jord, 37 Minn. 544, Sec. 208. vs. Standard MetaJ' Co., 21S 111. 240, Sec. 60, 66. Frownfelter vs. State, 6© Md. 80, Sec. 156. Fry vs. Bannon Sewer Pipe Co., 101 N. E. 10, Sec. 75. Fulkerson vs. Brownlee, 69 Mo. 371', Sec. 248. Fulkm vs. Adams', 37 Vt. 39'!, Sec. 40. Fuller VS'. Aylesworth, 75 Fed. Eep. 694, Sec. 187. vs. Davis, 1 Gray 612', Sec. 104, 232'. vs. Dupont, 1S3 Mass. 596, Sec. 109. vs. Hapgood, 39 Vt. 617, Sec. 263, 274. V8. Scott, 8 Kan. 26, Sec. 16, 67. vs. Tomlinson, 58 Iowa Hi, See. 90. FuUerton vs. Hill, 48 Kan. .568, Sec. 8, 10, 112. vs. Sturges, 4 O. S. 529, Sec. 109. Fullerton Lumber Co. vs. Gatesi 89 Mo. App. 201, Sec. 70a. Fumess vs. Read, 63 Md. 1, Sec. 202: Fumold VS'. Bank, 44 Mo. 336, Sec. 249. Fusz vs. Trager, 39 La. Ann. 292, Sec. 205. Gadsden vs. Brown, Speer's Eq. (S. C.) 37, Sec. 250. Gaff vs. Sims, 45 Ind. 263, Sec. 08. Gage vs. Lewis, 68 111. 604, Sec. ll'O, 281. vs. Mechanic's Nat. Bank, 79 III. 62, Sec. 61. Galbraith vs. Fullerton, 58 111. 126, Sec. 88. Gallager vs. Brunei, 6 Cowen 346i, Sec. liO. Gallagher vs. McBride, 66 N. J. L. 360, Sec. 36. Gamage vs. Hutchins, 23 Me. 966', Sec. 60, 67. Gammell vs'. Parramore, 58 Ga. 54, Sec. 70. Gandy vs. Gandy, L. E. 30 Oh. Div. 57, Sec. 1142. Ganey vs. Hohlman,, 145 III. App. 467, Sec. 79. Gannett vs. Elodgett, 30 N. H. 160, Sec. 245. Gans vs. Carter & Aiken, 77 Md. 1, Sec. 13. vs. Thieme, 93 N. Y. 2251, Sec. 250, 271. Gard vs. Stevens, 12 Mich. 292, Sec. 18, 59, 96'. TABLE OF CASES. 557 (References are to sections.) Gardner vs. Brown, 2Z Nev. 1156, Sec. 214. vs. Cooper, 9 Kan. App. 587, Sec. 122. vs. Walsh, 5 El. & Bl. 83, Sec. 75. vs. Watson, 76 Tex. 25, Sec. 50, 73. Gardener vs. Woodyear, 1 Ohio 170, 177, Sec. 181'. Garland vs. Gaines, 73 Conn. C62, Sec. 57, 61. Garlini vs. Strickland, 27- Me. 443, Sec 209. Garlinghouse vs. Jacobs, 219' N. Y. 297, Sec. 172. Garner vs. Hudgins, 46 Mo. 380, Sec. 34, 39, 279. Garnett vs. Farmers' Nat. Bank, &l Ky. 614, Sec. 132. Garrett vs. Logan, lO Ala. 344, Sec. 197. vs. Shove, 15i R. I. S3», Sec. 121. Garver vsv Tisdnger, 46' O. S. 56, Sec. 227. Gaskill vs. Wales, 36 N. J. Eq. 52.7, Sec. 244. Gasquet vs. Oakey, 19 La. 76, Sec. 2641. Gatch«ll vs'. Morse, 81 Me. 206', Sec. ] 28'. Gates vs. Bell, 3 La. Ann. 62, Sec. 22. vs. McKee, 13 N. Y. 232, Sec. 18, 50, 60. vs. Tebbetts, 83 Neb. 573, Sec. Ula, 104. Gaussen vs'. United States, 97 U. S. 584, Sec. 1521 Gay VB'. Grant, 101 N. C. 206i, Sec. 218. vs. Mott, 43 Ga. 252, Sec. 16. vs. Murphy, 134 Mo. 98, Sec. 123. vs. Parpart, 101 U. S. 391, Sec. 181. vs. Schaefer, 52. Wash. 269, Sec. 43. vs. Ward, 67 Conn. 147, Sec. 71. Gaylor vs. Hunt, 23 0. S. 256, Sec. 169. George vs. Andrews, 60 Md. 26, Sec. 90. vBi. BischofF, 68 111. 236, Sec. 18». VS'. Crim, 66 S. E. 526, Sec. 249. vs.. Elms, 46 Ark. 260, Sec. 221. vs. Hoskins, 30 S. W. Rep. (Ky.) 406, Sec. 34. Gerard vs. Cowperthwait, 21- N. Y. S. 1092, Sec. 135. Gerber vs'. Ackley, 32 Wis. 233', Sec. 164. vs. Sharp, 72 Ind. 558, Sec. 249. German Amer. Sav. Bank vs. Fritz, 68 Wis. 390, Sec. 249, Z53. German American Bank vs. Auth, 87 Pa. 419, Sec. 180. German National Bank vs. Foreman, 138 Pa. 474, Sec. 101, German Savings Inst. vs. Vahle, 28 111. App. 557, Sec. 86. Germania Fire Ins. Co. vs. Hawks, 65 Ga. 674, Sec. 143. VS'. Lange, 193 Mass. 67, See. 76. Getty V9. Binsse, 49 N. Y. 385, Sec. 69, 119. Ghiselin vs. Ferguson, 4 Har. & J. (Md.) 522, Sec. 248. Gibbens vs. Pickett, 31 Fla. 147, See. 147. Gibbs vs. Blanchard, IB Mich. 292, Sec. 37. vs. Johnson, 68 Mich. 671', Sec. 109, 199. Gibson vs. MitcheU, 16 Fla. 519, Sec. 273. vs. Rix, 32 Vt. 824, Sec. 140. vs. Shehan, S App. D. C. 39'I, Sec. 2C3. 558 TABLE OP CASES. (References are to sections.) Gieseke vsi. Johnson, 115 Ind. 308, Sec. 284. Gifford vs. Rising, 12 N. Y. Supp. 430, Sec. 24». Gilbert vs. Neely, 36 Ark. 24, Sec. 248. Giles vs. Brown, Admr., 60 Ga. 658', Sec. 220. Gilkey vs. Oook, 60 Wis. 163, Sec. 147. Gill vs. Morris, 11 Heisk. 614, Sec. 103. Gillrapie VB. Torrance, 25 N". Y. 306, Sec. 117. Gillett vs. Wiley, 106 111. 310, See. 22S. Gillighan vs. Boardman, 29' Me. 79, Sec. 37. Gillilan vs. Ludington, 6 W. Va. 128, Sec. 113:. Gilmore vs. Crowell, 67 Barb. 62, Sec. 206. Gilpin vs. Hord, 85 Ky. 2113', Sec. 1185, 188. vs. Marley, 4 Houst. (Del.) 284, Sec. 8, 10. Gingrich vs. People, 34 111. 448', Sec. 282. Glasgow vs. State, 41 Kan. 338, Sec. 232. Glass vs. Thompson, 9 B. Men. (Ky.) 236, Sec. 97. Glasscock vs. Hamilton, 62 Tex. 143, Sec. 114, 269, 278. Glazier vs. Douglaes, 32 Conn. 393, Sec. 101. Gleason vs. Briggs, 28i Vt. 135, Sec. 36. Gleeson's Estate, 192' Pa. 279, Sec. 183, 188. Glencoe vs. People, 78 111. 382, Sec. 147. Glenn vs. Jones, 146 Gal. 5il6, Sec. 76b. vs. Morgan, 23 W. Va. 467, Sec. 83'. Globe Bank vs. Small, 25 Me. 366, Sec. 67. Godfrey vs. Orisler, 121 led. 203, Sec. 97. vs. nice, 59 Me. 308, Sec. 275, 284. (Jodwin vs. Francis, L. K. 5, C. P. 28©, See. 30. Goebel vs. Stevenson, 3S' Mich. 172, Sec. 205. Goetz vs. Foos, 14 Minn. 265, Sec. 31. Goff vs. Bankston, 35 Miss.. 518, Sec. 11. Gold vs. Bailey, 44 111. 491, See. 234. Goldring vs. Thompson, 58 Fla. 248, Sec. 58'. Golsen vs. Brand, 75 111. 148, Sec. 275, 280. Good vs. Martin, 95 T7. S. 90, Sec. 8, 10, la vs. Martin, 1 Colo. 105i, Sec. 10. Goodall vs. Wentworth, 20 Me. 322, Sec. 269. Goodbar vs. Lindsley, 51 Ark. 380, Sec. 208. Goodling vs'. Simon, 54 Pa. Sup. Ct. 1B5, Sec. 39. Goodman vs. Chase, 1 Barn. & Aid. 297, Sec. 38i Good Koads Machinery Co. vs. Moore, 25 Ind. App. 479v Sec. 78. Goodrich vs. Tracy, 43 Vt. 314, Sec. 97. Goodwin vs. Blake, 3 T. B. Mon. (Ky.) 106, Sec. 1S8-. Goodwine vs. State, 81 Ind. 1109, Sec. 166. Goodwyn vs'. Hightower, 30 Ga. 249, Sec. 82. Goodyear Dental Vulcanite Co. vs. Bacon, 15'1 Mass. 460, Sec. 23a, 128. Gordon vs. Moore, 44 Ark. 349, Sec. W4. vs. Price, 10 Ired. 385, Sec. 85. vs. Kixley, 8i8 Va. 863, Sec. 269. TABLE OF CASES. 559 (References are to sections.) Gosman vs. Crviger, 69 N. Y. 87, Sec. 11. Gosserand V3. Lacour, 8 La. Ann. .75, Sec. 88, 114. Gossin V9. Brown, 11 Pa. 527, Sec. 230. Gottfried Brewing Co. vs. McDonald, 146 111. App. 601, Sec. 144. Gould vs. EUery, 39 Barb. 1163, Sec. 51. vs. Robson, 8 East. 576, Sec. 96. vs. Steyer, 75 Ind. 50, Sec. 220. Goux vs. Moucia, 30 La. Ann. 743, Sec. 223. Governor vs. Chuteau, 1' Mo. 771, Sec. 220. vs. Dod'd, 81 111. 162, Sec. 159. vs. Gordan, 15i Ala. 72, Sec. 145. vs. Lagow, 431 111. 134, Sec. ISl. vs. Monitfort, 23 N. C. 155, Sec. 175. vs. Pearce, 31 Ala. 465, Sec. 164. Grace vs. Mitchell, 31' Wis. 533, Sec. 172. Gradle vs. Hoffman, 105 111. 147, Sec. 147. Graeff's Appeal, 79 Pa. St. 146, Sec. 252. Graff vs. Foster, 67 Mo. 512, Sec. 46. Graff & Co.'s Estate, 139 Pa. 69, Sec. 245. Grafton vs. Cumniings, 99 U. S. 100, Sec. 28. Graham vs. Bradley, 5 Humph. (Tenn.) 476, Sec. 63. vs. Marks, 98 Ga. 67, Sec. 14, 103. vs. Middleby, 185 Mass. 349, Sec. 681 vs. Eingo, 67 Mo. 324, Sec. 117. vs. Bush, 73 Iowa 451, Sec. 75. vs. State, 66 Ind. 386, Sec. 146. Granite Bldg. Co. vs. Saville, lOr Va. 217, Sec. 233. Grant vs. Ludlow, 8 0. S. 1, Sea 25S. vs. Naylor, 4 Cranch 224, Sec. 52. vs'. Shaw, 16 Mass. 341, Sec. 42. vs. Smith, 46 N. Y. 98, Sec. 76. Graves vs. Lebanon Nat. Bank, 10 Bush (Ky.) 23, Sec. 15^ IO61, 141; vs. Sittig, 5 Wis. 219, Sec. 209. Graves, et al., vs. Tucker, 10 Sraedes & M. 9, Sec. 15', 127. Gray vs. Farmers Bank, 81 Md. 631', Sec. 115'. vs. Hciman, 75 Wis. 453, Sec. 41. vs'. Mathias, 5 Ves. .Jr. 286, Sec. 138. vs. Kobinson, 33 Pac. Rep. (Ariz.) 712, Sec. 214. vs. Seckham, L. R. 7 Ch. App. 680, Sec. 252. vs. South & North Ala. E. R., 162 Ala. 262., Sec. 193. vs. State, 43 Ala. 4, Sec. 231. vs. The State, 78 Ind. 68, Sec. 19. Great Falls vs. Hanks, 21 Mont. 83, Sec. 151. Great Western Ptg. Co. vs. Belcher, 127 Mo. App. 133, Sec. 61. Greely vs. Dow, 2 Met. 176, Sec. 93. Green vs. Blunt, 59 Iowa 79, Ark. 239, Sec. 98. vs. Boyd, 13 Pa. Sup. Ct. 651', Sec. 76. VS'. Brookins, 23 Mich. 48, Sec. 32. 560 TABLE OF CASES. (References are to sections.) Green tb. Burke, 23 Wend. 490, Sec. 114. vs. Conrad, 1.14 Mo. 691, Sec. 144. vs. Cresswell, 10 Ad. & Ell. 453, Sec. 32, 331 vs. Hadfield, 89 Wis. 138, Sec. 43. vs. Milbank, 56 How. Pr. 32, Sec. 275. vs. Richardson, 4 C!olo. 584, Sec. 43. vs. Solomon, 80 Mich. 234, Sec. 3&. vs. Young, 8 Me. 14, Sea 71. Green Bay & Minn. R. R. Co. vs. Union Steamship Co., 107' U, S. 96, Sec 11. Greene vs. Burton, 50 Vt. 423, Sec. 39. Greene County vs. Wilhite, 29 Mo. App. 459', Sec. 20, 109i. Green Fruit Co. vs. Pate, 99' Ga. 60, Sec. 20S. Greenfield vs. Wilson, 18 Gray 384', Sec. 164. Greenlaw vs. Pettit, 87 Tenn. 467, Sec. 25il. Greenough vs. Smead, 3 O. S. 415, Sec. 8, 9, 112. Greenville vs. Ormand, 51 S. C. 58, Sec. 78. Greenwood vs. Taylor, 1 Rusa. & M. 166, Sec. 292. Greer Machine Co. vs. Sears, 23 Ky. Law Rep. 2025, Sec. 6«. Gregory vs. Logan, 7 Blaclcf. (Ind.) US, Sec. 27. vs. O'Briani, 13 N. J. L. m, Sec. 184. Grey vs. Friar, 15 Q. B. 90T, Sec. 133. Grider vs. Tally, 77 Ala. 422, Sec. Ii69. Gridley vs. Oapen, 72 HI. W, Sec. 4S, 70. Grieff vs'. Kirk, 17' La. Ann. 25, Sec. IBS'. Griffin vs>. Hasty, 94 N. C. 438, Sec. 139. vs. licvee Comrs., 71 Miss. K1, Sec. 166. vs. Long, 131 S. W. 672, Sec. 280. vs. Rembert, 2 Rich. N. S. (S. C.) 410, Sec. St. Griffis vs. First Nat. Bank, 79 N. E. 230, Sec. 255. Griffith vs. Robertson, 15 Hun 344, Sec. 99. vs. Rundle, 23 Wash. 4!53, Sec. liSl. vs. Sitgreaves, 90 Pa. St. 161, Sec. 14. Griffiths' V8, Hardenhergh, 41 N". Y. 464, Sec. 139. Grim vs. Jackson Tp., 51 Pa. 210, Sec. 109. Grimmet vs. Henderson, 66 Ala. 521, Sec. 221. Gring's Appeal, 89 Pa. 33i6, Sec. 2911. Grisard vs. Hinson, 50 Ark. 228, Sec. 99. Grissom vs. Commeroial Bank, 87 Tenn. 350, Sec. 257. Gritman vs. U. S. Fidelity & Guar. Co., 41 Wash. 77, See. 109. Grob vs. Gross, 83 N. J. L. 430, Sec. 60. Grocers Bank vs. Kingman, 1'6 Gray 473, Sec 80, 132. Groendyke vs. Musgrave, 123 Iowa 535', Sec. 76. Gronna vs. Goldammer, 26 N. D. 122, Sec. 275. Gross vs. Bouton, 9' Daly (N. Y.) 25, Sec. 181. vs. Davis, 87 Tenn. 226', Sec. 271, 272, 283. Grove vs. Johnstone, L. B., 24 Ir. 352, Sec. 104. vs. Van Duyn, 44 N. J. L. 654, Sec. 168. Gnibbs vs. Wysors, 32 Gratt. 127, Sec. 250. TABLE OP CASES. 561 (References are to sections.) Grundy vs. Meighan, 7 It. L. Rep. SW, Sec. 102. Guarantee Co. of N. A. vs. Mechanics' Sav. Bank & Truat Co., W» TJ. S. 402, Sec^. 2S%, 2'40. Guaranty Co. vs. Pressed Brick Co., 191 U. S. 416, Sec. 18, 76a, 91. Guardian Fire Assurance Co. vs. Thompsoini, 68 Cal. 208, Sec. 19. Guardian Trust C-o. vs. Peabody, 107 N. Y. S. 515', See. 50. Guckenheimeir & Bros. Co. vs. Kann, 89 Atl. 807, Sec. 275. Gudtner vs. Kilpatrick, 14 Neb. 347, Sec. lOO. Guggenheim vs. Eosenfeld, 68 Tenn. 533, Sec. 44. Guild vs. Butler, 107 Mass. 386, Sec. 90, 98, 100. vs. Conrad, L. R. 1894, 2 Q. B. Div. 885, Sec. 265. vs. Thomas, 54 Ala. 414, Sec. 127. Gunn vs. Geary, 44 Mirih. 618, Sec. 17. Gunnisi vs. Cluff, 111' Pa. 512, Sec. 203. vs. Weigley, 114 Pa. 191', Sec. 103. Gumz vs. Geigling, 108 Mich. 29o', Sec. 10. Gustine vbi Union Bank, 10 Rob. (La.) 412, Sec. 92. GutseJienritter vs. Whitmore, 158i Iowa 252, Sec. I'SS. Guthrie vb'. Carpenter, im Tnd. 417, Sec. 76b. vsi. Fis-her, 2 Idaho 111, Sec. 205. vs: Ray, 36 Neb. ©12, Sec. 244. Guthrie Daily Leader vs. Cameron, 3 Okl. 677, Sec. 145. Guynn vs. McCauley, 32 Ark. 97, Sec. 46. Gwynne vs. Burnell, 7 CI. & Fin. 572, Sec. 156. Haberer vs. Hansen, 14f& III. App. 83, Sec. 165. Hacker vs. Johnson, 66 Me. 2H, Sec. 215. Hacker's. Appeal, 121 Pa. 182, Sec. 122. Haekebt vs. First Nat. Bank, 114 Ky. 1193, Sec. 74. Haden vs. Brown, 18 Ala. 641, Sec. 11 6: Hager vs. Catlim, 18 Hun 448, Sec. 147. Hagerthy vs'. Phillips', 83' Me. 336, Sec. 278i. Hagey vs. Hill, 75 Pa. 108, See. 92. Hagler vs. State, 31 Neb. 144, Sec. 123. Hahn vs.- Maxwell, 33 HI. App. 261, Sec. 4L Haigh vs. Brooks, 10 Ad. & EU. 309, Sec. 50. Haigler vs. Adams, S> 6a. App. 637, Sec. 76a. Halbert vs. State, 22 Ind. 125, Sec. 1'67. Halderman vs. Woodward, 22 Kas. 734, Sec. 95. Hall vs. Aubum Co., 27' Cal. 255, Sec. 148. vs. Firs.t Nat. Bank, 5 Kan. App. 493, Sec. i vs. Gleason, 158' Ky. 780, Sec. 269. vs. Hall, 10 Humph. (Tenn.) 352, Sec. 280. vs. Monroe, 73 Me. 123, Sec. 210. VB. Presnell, 157 N. C. 290, Sec. 82. vei. Rand, 8 Conn. 560, Sec. 50. 562 TABtE OP CASES. (References are to sections.) Hall vs. State, 6& Miss. 529, Sec. 149. vs. Tiemey, 89 Minn. 407, Sec. 164. V9. Weaver, 34 Fed. 104, Sec. 6. V9. Wisconsin, 103 U. S. 5> Sec. 145. Hall'si Admx. vs-. McHenry, V9 Iowa 621, Sec. 75. Hall's Extr. vs. Fanners Bank, 28 Ky. Law Rep. 1490, Sec. 68. Halliday vs. Hart, 30 N. Y. 474, Sec. 82. Hallock VB. Yankey, 102 Wis; 41, Sec. 88, 94, 114. Halsa vs. Halaa, 8 Mo. 303, See. 27. Halsey vs. Flint, 15 Abb. Vi. (N. Y.) 367', Sec. 182. vs. Murray, ri2 Ala. 185', Sec. 275. Ham vs. Greve, jik Ind. 18; See. 15, 105, 106. Hamm vs. Fagan, 36 Okl. 223, Sec. 72, Hamil vs. Hall, 4 Colo. App. 290, Sec. 40. Hamilton vs. Hooper, 46 Iowa 515, Sec. 75'. vs. Johnston, 82 111. 39, Sec. 264. vs. Prouty, 50 Wis. 502, Sec. 84. vs. State, 32- Md. 348, Sec. 194. vs. Watson, 12 Clark & Fin. 109, Sec. l«6i Hammond vs. Hannin, 21 Mich. 374, Sec. 22^ vs. Myers, 30 Tex. 375, Sec. 261. Hampe vs. Manke, 28 S. D. 501, Sec. 90. Hampton vs. Phipps, 108 U. S. 260, Sec. 255. Hanby's Adm. vs. Henritze's Admr., 85 Va. 177, Sec. 246. Hancock vs. Council, 96 Ga. 778, Sec. 44. vs. Fleming, 103 Ind. 533, Sec. 244. vs. Hazzard, 12 Cush. 112, Sec. 167. Hand Mfg. Co. vs. Marks, 36 Oreg. 528, Sec. 76b, 96. Handley vs. Heflin, 84 Ala. 600, Sec. 273. Handy vs. Burrton Land Co., 59 Kan. 396, Sec. 183. Haney vs. People, 12 Colo. 345', Sec. 14. Hangsleben vs. People, 89 ni. 164, Sec. 231. Hanish vs. Kennedy, 106 Mich. 456', Sec. 204. Hann vs. Lloyd, 50 N. J. L. 1, Sec. 172. Hanna vs. International Petroleum Co., 23 0. S. 623, Sec. 215. vs. McKenzie, 5 B. Mon. 314, Sec. 195. Hannibal & St. J. R. R. Co. vs. Shepley, 1 Mo. App. 254, Sec. 197. Hansen vs. Rounsavell, 74 lU. 238, Sec. 96. Hansford vs. Perin, 6 B. Mon. (Ky.) 593, Sec. 203. Hanson vs. Manley, 7 Iowa 48, Sec. 118. vs. Svarvemd, 18 N. D. 560, Sec. 45. Harbaugh vs. Albertson, 102 Ind. 69, See. 19. Harbert vs. Dumont, 3 Ind. 346, See. 93. vs. Gormley, 115 Pa. 237, Sec. 203. Harbord vs. Cooper, 43 Minn. 466, Sec. 51. Harden vs. Carroll, 90 Wis. 350, Sec. 275. Hardest&r vs. Tate, 85 Mo. App. 624, Sec. 89'. Hardestv vs. Price, 3 Col. 556, Sec. 139. TABLE OP CASES. 563 (References are to sections.) Hardin -rau Cairioo, 3 Met. (Ky.) 28©, Sec. 163. Hardin's Admr. vs. Taylor, 78 Ky. 593, Sec. 22a. Hajrding vs. Kuessiier, 172 III. 125, Sec. 186. vs. Tifft, 75 N. Y. 461, Sec. 9«. vs. Waters, 6 Lea ZSH, Sec. 10. Hardman vs. Bradley, 85 111. IBS, Sec. 3©. Hardwick vs. Wright, 35 Beav. 133, Sec. 98'. Hardy vs. Bern, 5 T. E. 540, See. 135. vs. Pool, 41 N. C. 28, Sec. 58. vs. United States, 71 Fed. Hep. 1158, Sec. 231. Hare vs. Grant, 77 N. C. 203, Sec. 286. Harger vs. Spofiford, 46 Iowa II, Sec. 203. Hargis vs. Mayes, 20 Ky. L. Kcp. 1965, Sec. 189. Hargreave vs. Smee, 6 Bing. 244, Sec. 18', 59. Hargreaves' vs. Parsons, 13 Mees. & Wels. 5B1', Sec. 311. Hargroves vs. Cooke, 15 Ga. 321, Sec. 27. Harless vs. Consumers' Gas Trus^t Co., 14 Ind. App. 545, See. 192. Harley vs. Stapleton's Adm., 24 Mo. 248, Sec. 28*. Harman vs. Howe, 27 Gratt. 67fi, Sec. 194. Harmony Nat. Bank's Appeal, 101 Pa. 428, Sec. 255. Harms vs. McCormick, 30 HI. App. 125, Sec. 142. Hassell vs. Long, 2 M. & S. 363, See. 2. Harner vs. Ba*dorf, 35 O. S. 1.13, Sec. 97. vs. Dipple, 31 0. S. 72, Sec. I'l. Harper vs. Kemble, 65 Mo. App. 514, Sec. 247. vs. McVeigh, 82 Va. 751, Sec. 280. vs. Rosenberger, 59 Mo. App. 388, Sec. 249. Harrah vs. Doberty, IM Mich. 175, Sec. 278. Harrington's Admr. vs. Crawford, 61' Mo. App. 221, Sec. 139. Harris vs. Brooks., 211 Pick. 166', Sec. 1T3, 267. vs. Frank, 29 Kan. 200, Sec. 247, 249. vs. Harris, 23 Gratt. 737, Sec. 122. vs. Harrison, 78 N. C. 202, Sec. 248. vs. Jones, 23 N. D. 488, Sec. 278. vs. Lee, 1 P. Wms. 482, Sec. 259. vs. Newell, 4® Wis. 687, Sec. 6, 1115, 281'i vs. Eegester, 70 Md. 109, Sec. 23a. vs. Rivers., 53 Ind. 216, Sec. 258. vs. State, 60 Ark. 212, See. 228, 281. vs. Warner, 13 Wend. 400, Sec. 264. vs. Young, 40 Ga. 65s Sec. 38. Harrisburg Sav. & Loan Assn. vs. U. S. Fid. & Guar. Co., 197 Pa. HTj Sec. 132. Harrison vs. Birrell, 58 Ore. 410, Sec. 36. vs. Clark, 87 N. Y. 572, Sec. 221. vs. Hoff, 102 N. C. 25, Sec. 181. vs.. Lumbermen's Ins. Co., 8 Mo. App. 37, Sec. 127. vs. Price, 215 Gratt. 553, Sec. 115. 564 TABLE OF CASES. (References are to sections.) Harrison vs. Sawtell, 10 Johns. 24B, Sec. 39. vs. Union Pacific Ry. Co., 13 Fed. Rep. 522, Sec. VI. vs. Wilkini, 69 N. Y. 412, Sec. 19. Haishman vs. Armstrong, 4S Ind. 126, Sec. 278. Harshaw vs. McDowell, 89 N. C. li»l. Sec. ISl. Hart vs. Clouser, 30 Ind. 210, Sec. 72. vs. Mayor of Newark, 80 N. J. L. 600. vs'. Minchen, 69 Fed. Rep. 520, Sec. 65. vs. United States, 95 U. S. 316, Sec. 162. vs. W€S.tern R. R., 13 Met. 99, Sec. 248. Hartman vs. Banner, 7'4 Pa. 36, Sec. 83. Hartley vs. Colquitt, 72 Ga. 351, Sec. 232. vs. Sanford, 55' L. R. A. (N. J. Ct. of Error & App.) 20©, Sec. 34. Harts vs. Wendell, 26 III. App. 274, Sec. 214. Hartwell vs. Smith, 15 O. S. 200, See. 264. VS'. Whitman, 36 Ala. 712, Sec. 253. Harwood vs. Kierst«d, 20 111. 367, See. 55. Hatch vs. Attleborough, 97 Mass. 533, Sec. 160, 174. vs. Douglas, 48 Conn. 1116, See. 128. vs. Elkins, 65 N. Y. 489, Sec. 174. Hatchett vs. Pegram, 21 La. Ann. 722, Sec. 275!, 284. Hatfield vs. Merod, 82 111. 113, Sec. 26&, 280. Hathaway vs. Davis, 33 Cal. 161, Sec. 190. Haueneteiu vs. Gillespie, 73 Miss. 742, Sec. 134. Hauer & McNaix vs. Patterson, 84 Pa. 27'4, Sec. 10. Haughton vs. Eayley, SI N. C. 337, Sec. 143. Havens vs. Lathene, 75 N. C. 505', Sec. 166. vs. Willis, 100 N. Y. 482, Sec. 244. Hawesi vs. Armstrong, 1* Bing. N. C. 761, Sec. 2(6. vs. Marchant, 1 Curt. 136, Sec. 14. Hawkins vs. Ball's Adm., 18 B. Mon. 690, Sec. 69. VS'. Chace, 19 Pick. ,502, Sec. 22, 30. vs. New Orleans Ptg. & Pub. Co., 29 La. Ann. 134, Seo. SI. Hawley vs. Gray Bros. Paving Co., 127 Cal. 5«0, Sec. 187. Haworth vs. Crosby, 120 Iowa 612, Sec. 105. Hayden vs. Cabot, IT Mass. 169, Sec. 283. vs. Cook, 34 Neb. 670, .Sec. 7'6a, 134. vs. Keith, 32 Minn. 277, Sec. 192. vs. Thrasher, 18 Fla. 795, Sec. 281. Haydenville Bank vs. Parsons, 138 Mass. 53, Sec. 83. Hayes vs. Chicago Gravel Co., 37 111. App. 19, Sec. 196. vs. Joseph, 26 Cal. 535i Sec. 96. vs. Ward, 4 Johns. Ch. 123, Sec. 244. vs. Wells, 34 Md. 512, Seo. 82, 84. Hayman vs. Hallam, 79 Ky. 389, Sec. 208. Hays vs. Wilstach, 101 Ind. 100, Sec. 188. Hazard vs. Griswold, 21 Fed. Rep. 178, Sec. 14, 103. Hazelri^ vs. Donaldson, 59 Ky. 445, Sec. 202. TABIiE OF CASES. 565 (References are to sections.) Hazeltcm vs, Valentine, 113 Mass. 472, Sec. 279. Headington vs. Neff, 7 0. 229, Sec. 4.5. Healdsburg vs. Mulligan, 113 Cal. 205, Sec. 167. Healy vs. Newton, 96 Mich. 228, Sec. 190. Heard vs. Tappan, 121 Ga. 437, Sec. 74. Heath vs. Hunter, 73 Me. 259, Sec. 185. vs. Lent, 1 Cal. 410, Sec. 208. vs. Shrempp, 22 La. Ann. 1C7, Sec. 176, Heattm vs. Eldridge & Higgins, 510 0. S. 87, Sec. 47". Hebert vs. Lee, 118 Tenn. 133, Sec. 107. Heoht vs. Skaggs, 5SI Ark. 29'1, Sec. 273. vs. Weaver, 34 Fed. I'll, Sec. 1119. Hecker vs. Mahler, 64 0. S. 398, Sec. 279. Hedden vs. Schnieblin, 1*26 Mo. App. 478, Sec. 31, 57. Hedrick vs. Robbins-, 30 Ind. App. 585, Sec. 76a. Heeringa vs. Ortlepp, 167 111. App. 586, Sec. 60, 68'. Hees vs. Nellis, 65 Barb. 440, Sec. 143. Heffield vs. Meadows, 4 C. P. Div. 595, Sec. 59'. Heidt vs. Minor, 89 Cal. IIS^ Sec. 171. Helms Brewing Co., vs. Flannery, 137 111. 309, Sec. 11; Heinlen vs. Beans, 71 Cal. 295, Sec. 185. Heise vs. Bumpassi, 40 Ark. 545', Sec. 10. Held vs. Bagwell, 58 Iowa 139', Sec. 21. Helena vs. Brule, 13 Mont. 429, Sec. 197. Helt vs. Whittier, 31 0. S. 473, See. 186i. Hellams vs. Abercrombie, 15 S. C. 110, Sec. 270. Helm's Admr. vs. Young, 9 B. Mon. (Ky.) 394, Sec. 851 Helmkampf vs. Wood, 85 Mo. App. 227, Sec. 197. Hemmingway vs. Toucher, 96 N. Y. 281, Sec. 183. Henderson vs. Ardery, 36 Pa. 449, Sec. 81. vs. Huey, 45 Ala. 275i Sec. 98. vs. Marvin, .SI Barb. 2i97, Sec. 76. Henry vs. Antrim, 30 Law Bui. (0.) 78', Sec. 131). vs. Sneed, 99 Mo. 407, Sec. 19. Henry County vs. Salmon, 201 Mo. 136, Sec. 134. Hendry vs. Cartwright, 89 Pae. 309, Sec. L09, 123. Hendryx vs. Evans, 120 Iowa 310, Sec. 99. Henrie vs. Buck, 39 Kan. 381, Sec. 17. Hennessy vs. Metzger, 162 HI. 505, Sec. 135. Henricus vs. Englert, 137 N. Y. 488, Sec. 142. Henly vs. Mayor of Lyme, 5' Bing. 91, Sec. 145. vs. Stemmons, 4 B. Mon. (Ky.) 131, Sec. 263. Hemtig vs. Collins, 1 Kan. App. 173, Sec. 183. Hendrick vs. Whittemore, 105 Mas. 23, Sec. 267. Herrick vs. Borst, 4 Hill 660, See. 11(6. vs'. Swartwout, 72 HI. 340, Sec. 187. Herman vs. Jeuehner, 16 Q. B. Div. 561, Sec. 279. Hertz vs. Kaufman, 46 111. App. SOI, Sec. 215'. 566 TABLE OF CASES. (References are to sections.) Hess VS. SchnafiFner, ISO S. W. 102i*, Sec. 75. Hess' Estate, ISO Pa. 346, Sec. 122. 69 Pa. 272, Sec. 245. Hessell vs. Johnson, 63 Mich. 623, Sec. 72, 74, 109, 127. Hessey vs. Heitkamp, 9 Mo. App. 36, Sec. VS2, Hester vs. State, 15 Tex. App. 418, Sec. 231. Hetfleld vs. Dow, 27 N. J. L. 440, Sec. 37. Hetten vs. Lane, 43 Tex. 270, Sec. 1S6. Hevener vs. Berry, 17 W. Va. 474, Sec. 2'4a'. Heyman vs. Dooley, 77 Md. 1'62, Sec. 57, 67. vs. Landers, 12 Cal. 107, Sec. 1196. Hibbard vs. McKindley, 2S HI. 240, Sec. 196. Hibemia Sav. Bank vs. McGinnis-, 9 Mo. App. 578, Sec. 76. Hibbs vs. Blair, 14 Pa. 4Hi3., Sec. 199. Hichborn vs'. Fletcher, 66 Me. 209, Sec. 275. Hicks vs. Memdenhall, 17 Minn. 475, See. 211. Hicklin vs. Nebraska, etc.. Bank, 8 Neb. 463-, Sec. 210. Hiekcoek vs. Bell, 46 Tex. 610, Sec. 187. Hidden vs. Bishop, 5 R. I. 28, Sec. 118. Higdon vs. Fields, 6 Ala. App. 281, Sec. 146. Higginsi vsi J. I'. Case Threshing Machine Co., 95 Neb. 3, Sec. 188'. vs. Mansfield, 62 Ala. 267, Sec. 208'. Hightower vs. Moore, 46 Ala. 387, See. 119'. Hill vs. Burke, 62 N. Y. VVl, Sec. ISl. vs. Haynes, 54 N. Y. 153i, Sec. 170. vs. King, 48 0. S. 76', Sec. 249. vs. Morse, 6il' Me. 541, Sec. 276. vs. O'Neill, 101 Ga. 882, Sec. 74i. vs. Scales, 15 Tenn. 410, Sec. 122. vs. Thomas, 19 S. C. 230, Sec. 196. Hill Mercantile Co. vs. Rotan Grocery Co., 127 S. W. 1080, Sec. 50, 66'. Hiller vs. Daman, 183' Mo. App. 916, Sec. 25'. va. Howell, 74 Ga. 174, Sec. 96. Hilliboe vs. Warner, 17 N. D. 594, Sec. 75, 114. Hilton vs. Dinsmore, 21 Me. 410, Sec. 40. Himrod vs. Baugh, 85 111. 4i36', Sec. 117. Himrod Furnace Co. vs. Cleveland & Mahoning R. R. Co., 22 0. S. 451, Sec. 28. Hine vs. Morse, 218 U. S. 49S, Sec. 19. Hiner vs. Newton, 30 Wis. 640, Sec. 117, 258'. Hindman vs. Langford, 3 Strob. 207, Sec. 40. Hinchman vs. Rutan, 31' N. J. L. 496, Sec. 45: Hinkle vs. Holmes', 85 Ind. 405, Sec. 188. Hinckley vsi Kreitz, 58 N. Y. 588', Sec. 189, 246, 249. Hinkson vs. Com., 1'4 Ky. L. Rep. 203, Sec. 231. Hinton vs. Stanton, 1'6& S. W. 299, Sec. 7e-a. Hippach VBi. McKeever, 166 HI. 136, Sec. 57. Hirsch vs. Chicago Carpet Co., 82 111. App. 234; Sec. 57. TABLE OF CASES. 567 (References are to sections.) Hirt vs. Hahn, Gl Mo. 406, Sec. 135. Hoagland vs. Segur, 38 N. J. L. 330, Sec. 137. Hobbs' vs. Barefoot, 104 N. C. 224, Sec. 1)64. Hobsom vs. Ha-ll, 14 S. W. (Ky.) 9i58, Sec. 205. vs. Trevor, 2 P. Wms. IW, Sec. 135'. Hobson, Tn re, 61 Hun 504, Sec. 218. Hoboken vs. Gear, 217 N. J. L. 266, Sec. MS. vs. Harrison, 30 N. J. L. 73, Sec. 140. Hocker vs. Gentry, 60 Ky. 463, Sec. 46. Hod'gins vs. Heaney, 16 Minn. 189, Sec. 41'. Hodgkins' vs. Jackson, 70 Ky. 342, Sec. 43. Hodgson vs. Baldwin, 65 111. 532; Sec. 269. vs. Dexter, 1 Cranch C. 0. 109, Sec. 161. vs. Hodgson, 2 Keen 70t, Sec. I'M. vsi Shaw, 3 Myl. & K. 183, Sec. 244, 2'49'. Hodges vs. State, 20 Tex. 4eS, Sec. 281. Hoey vs. Jarman, 39 N. J. L. 523, Sec. 50. Hoffman vs. Bechtel, 52 Pa. 190, Sec. 63. vs. Mayand, 93 Fed. 171, Sec. 57. Hoffman, Admx. vs. Fleming, 6i6 0. S. 143, Sec. 222. Hoge vs. Norton, W Kan. 374i, Sec. 20S', 222. vs. Trigg, 4 Munf. (Va.) 150, Sec. 147. vs. Vintroux, 21 W. Va. 1', Sec. 222. Hogue vs. State, 28 Tnd. App. 285, Sec. 10«, ISS. Hoggatt vsi. Thomas, 3Si La. Ann. 288, Sec. 2165. Hohn vs. Shidoler, 164 Ind. 24'2, Sec. 76-a. Holandsworth vs. Commonwealth, I'l Bush. (Ky.) 617, Sec. 12'. HoUingsworth vs. Atkins, 4© La. Ann. 515, Sec. 203. vs. Tanner, 44 Ga. 11', Sec. 101, 257. Eollingshead vs. McKemize, 8 6a. 457, Sec. 46. Holler vs. Richards, 102 N. C. 545, Sec. 4®. Holland vs. Johnson, 51 Tnd. 346, Sec. 98. VS-. Teed, 7 Hare 50, Sec. 54. Holm vs. Jamieson, 17i3 111. 295, Sec. 104. Holme vs. Brunskill, 3 Q. B. Div. 495, See. 79'. Holmes vs. Day, lOS' Mass. 563, See. 246. vs. Preston, 71 Miss. 541, Sec. 6T. vs. Standard Oil Co., 189 HI. 70, Sec. 137. vs. Steamer Bell Air, 9 La. Ann. 523', Sec. 185. Holcomb VSI. Foxworth, 34 Miss. 266, Sec: li98. vs. Sawyer, 51 Cal. 417, See. 181. Holeombe vs. Fetter, 70 N. J. 300, Sec. 281. Holt va. Bodey, IS Pa. 207, Sec. 98. vs. Green, 23 P. F. Smith 198, Sec. 138. Holliday vs. Brown, 3i3 Neb. 667, Sec. 99. vs. Cohen, 34 Ark. 707, Sec. 208'. HoUister vs. Davis, 54 Pa. 508!, Sec. 117, 258. HoUiman vs. Carroll, 27 Tex. 23, See. 164. 568 TABLE OF CASEa (References are to sections.) Holbrook v». Investment Co., 32 Ore. 104, Sec. 187. Holloway vs. Holloway, lOS' Mo. 274, Sec. IS*. Holthaus vsi. Hart, & Mo. App. 1, Sec. 197. Holthouse vs. State, 49 Ind. App. 178, Sec. 72, 75. Holthausen vs. Kells, 45 N. Y..S. 471, Sec. IW. Holtham vs. Ryland, 1 Eq. Cases Abr. 18 PI. 8, Sec. 135. Hollinsbee vs. Ritohey, 49' Ind. 261, Sec. 184. Homans vsi Lambard, 21' Me. 308', Sec. 3S. Home Bank vs. Newton, 8 HI. App. 563, Sec. 101. vs.. Waterman, 134 HI. 461, Sec. 90. Home Ins. Co. vs. Holway, 55 Iowa 571', Sec. IS-, 106, 14a. Home Sav. Bank vs. Hos'ie, 119 Mich. 116, Sec. 49. Homer vs. A&hford, 3 Bing. 322, Sec. Ii3». Hood vs. Hayward, 124 N. Y. 1; Sec. IM, 220. vs. MaAhis, 21 Mo, 308i, Sec. 185. vs. Moigan, 47 AV. Va. 817, Sec. 276. Hook vs. Eicihesioin, 113 III. 43il, Sec. 280. Hooks vs. Branch Bank, 8 Ala. 580, Sec. 95, 284. Hooker vs. Blount, 44 Tex. Ciiv. App. Ii62, Sec. 97. Hooper vs. Hooper, 32 W. Va. 526, Sec. 4'3. vs. Hooper, 811 Md. 155, See. 50, 275. vs. Patteiaoni, 32' Pac. Eep. (Cal.) 614, See. 197. Hoover vs-. MoCormick, 84 Wis. 2lll5i, Sec. 67. vs. Mowrer, 84 Iowa 43, Sec. 274. Hopkins vs. Orr, 124 U. S. .510, Sec. 1'85. Hoppes vsi. Hoppes, 123 Ind. 397, Sec. 281'. Hormel & Co. vs. Amer. Bonding Co., 112 Minn. 268, Sec. 76-a, 233i Horn vs. Bray, 51' Ind. 555', See. 266. Horton vs. Manning, 37 Tex. 23, Sec. 10. Homhack vs. Swope, 8 Ky. L. Rep. 533, Sec. 195. Hosmer vs. True, li9 Barb. 106, Sec. 135. Hotchkiss vs. BameS', 34 Conn. 27, Sec. 59. VS'. Piatt, 8 Hun 46, Sec. Ii96. Hotham vs. Berry, 82 Kan. 4i'2, Sec. 275. Houghton- vs. Meyer, 208 U, S. .V49, Sec. 195'. vs. Milburn, 54- Wis. 564, Sec. 142. VS. Patitee, 58' N. H. 320, Sec. IBSt Houck vs. Graham, 106 Ind. 106, Sec. 275.. House vs. Surety Co., 21 Tex. Civ. App. 590, Sec. 76-a. Hover vs. Barkhoof, 44 N. Y. IIB, Sec. 172. Howe vs. Buffalo, N. Y. & Erie R. R. Co., 37 N. Y. 297, Sec. 282. vs. Frazer, 2 Rob. (La..) 424, Sec. 24«. \s: Watson, 179 Mass. 30, Sete. 28. Howe Co. vs. Farringfconi 82 N. Y. 121, Sec. 15, 99, llB, 128. Howell vs. Alma, 36 Neb. 80, Sec. 186. vs. Harvey, 65 W. Va. 310, Sec. 39. VSI Parsons, 89 N. C. 230, Sec. 20, 121^ TABLE OF CASES. 569 (Keferences are to sections.) Howard vs. Brower, 37 O. S. 402, Sec. 46. w. Lindeberg, 2 Alaska 301, Sec. 193. vs. Wyatt, 145 Ky. 424, See. 212. Howard InS'. Co. vs. Silverberg, 89 Fed. Rep. 169, Sec. 189. Rowland va. Wlite, 48 111. App. 236, Sec. 248. Howley vs. Scott, 123' Minn. 1159, Sec. 158. Hoxie vs. National Bank, 210 Tex. Civ. App. 462, Sec. 276. Hoyle vs. Hoyle, L. E. (1803)., 1 Ch. 84, Sec. 31. Hubbard vs. Ewing, 63 Tenn. 404, Sec. 222. vs. Gumey, 64 N. Y. 457, Sec. 85, 112. vs. Haley, 96 Wis. 578, Sec. 61. vs. Ogden, 22 Kan. 368, Sec. 83. vs. Reilly, 51' Ilnd. App. 19, Sec. 76-a, 79, lOS. Hubert vs. Mendheim, 64 Cal. 213i, Sec. 147. Hudelson vs. Armstrong, 70 Ind. gft, Sec. 110. Hudson vs. Bajratt, 62 Kan. 137, Sec. 220. vs. Miles, 1185 Mass. 582, Sec. 106, 108'. Huebner vs. Nims, 182 Mich. 667, Sec. 169. Huff vs. Hutchinson, 14 Howard 58«, Sec. 205. Huffman vs. Koppelkom, 8 Neb. 344, Sec. 164. Huffmond vs. Bence, 128' Ind. 131, Sec. 259. Huggins vs. People, 39 111. 241, Sec. 232. Hughes- va. Boone, 81 N. C. 2041, Sec. 26!3. va. Lawson, 31' Ark. ©1», Sec. 40. vs. Littlefield, 18 Me. 40O, Sec. 16, 56. vs. Newsom, 86 N. C. 424, Sec. 210. vs. People, 82.' HI. 78, Sec. 160. vs. Peper Co., ISS N. C. 158, Sec. 58. Hulett vs. SouUard, 26 Vt. 295, Sec. 282, 283. Hull vs. Brown, 35 Wis. 662^ Sec. 32. vs. Godfrey, 31 Neb. 204, Sec. 244. Hummelstown Brownstone Co. vs. Kncrr, 25 Pa. Sup. Ct. 465, Sec. 85. Humphrey vs. Taggart, 38 HI. 228, Sec. 212. Humphreys vs. St. Louis, I. JI. S. Ry. Co., 37 Fed. Rep. 307, Sec. 41. Humboldt Sav. & Loan Soc. vs. Wennehold, 81 Cal. 528, Sec. 125, 130. Hundley vs. Filbeo*, 73 Mo. 34, Sec. 19. Hunt vs. Gray, 3© N. J. L. 227, Sec. 74. vs. Hopkins', 83' Mo. 13, Sec. 187. vs. Roberts, 45 N. Y. 691, Sec. 71. vs. State, 124 Ind. 306, Sec. 160. vs. Taylor, 108 Mass. 608, Sec. 187. Hunter vs.. United Staites, 5 Pet. 173, Sec. 187. Huntington vs. Knox, 7 Cush. 371, Sec. r42. Huntsville Bank vs. Hill, 1 Stew. (Ala.) 201, Sec. 130. Huntley vs. Huntley, 114 U. S. 394^ Sec. 25. Hungerford vs. O'Brien, 37 Minn. 306, Sec. 67. Hurd vs. Barnhart, 53 Cal. 97, Sec. 208. vs. Dunsmore, 63 N. H. 171, Sec. 13S.. 570 TABLE OF CASES. (References are to sections.) Hurlburt vs. Kephart, 50 Colo. 353, Sec. 17. Hurley vs. Fidelity & Dep. Co., 95. Mo. App. 8®, Sec. 50. Huron vs. Armstrong, 2.7' Up. Can. (Q. B.) 583, Sec. 111. Hurs^t vs. Jennings, 5 Bam. & Cr. 650, Sec. 136. Hursey vs. Marty, 61 Minn. 430, Sec. 164. Husbands vs'. Commonwealth, 1*3 Ky. 290, Sec. 2a&, 231. Husak vs. Clifford, n» Ind. 173, Sec. 28'-a. Hutcheson vs. Eeash, IS Pa. Super. Ct. 96, Sec. 261. Hutcherson vs. Pigg, 8 Gratt. 220, Sec. 218. Hutchins vs'. Munn, 209 U. S. 24®, Sec. 196. Hutchinson vs. State, 4!3i Tenn. 95, Sec. 230. V9. Woodwell, 107 Pa. St. 509, Sec. 17, 99. Button vs. Campbell, 10 Lea (Tenn.) 170, S«c. 257. vs. Lockridge, 27 W. Va. 428, Sec. 188. vs. Padgett, 26 Md. 228, Sec. 27. Huyler vs. Atwood, 26 N. J. Eq. 504, Sec. 23. HyaAt vs. Grover & Baker S. M. Co., 41 Mich. 226, Sec. 129. Hyde vs. Miller^ 45 App. Div. (N. Y.) Sm, Sec. 284. vs. State, 512 Miss. 665, Sec. 145. va Tracy, 2; Day (Conn.) 491, Sec. 270. Hydraulic Press Brick Co. vs. Neumeister, 15 Mo. App. 592, Sec. 12S, 19ft Hyland vs. Habich, 160 Mass. 112', Sec. 71. Ma County Sav. Bank vs. Seidensticker, 1(28 Iowa 54, Sec. 96, 10&, 129. Me vs. Churchill, 14 O. S. 372,, Sec. 81, 88, 114. va. Stanton, 15 Vt. 6661, Sec. 29'. Ihrig V8'. Bussell, 68 Wasih. 70, Sec. 214'. Ijames' vs. Gaither, 93 N. C. 368, Sec. 255. Hiff vs. Weymouth, 40 O. S. lOl, Sec. 115. Illinois Ttadustrial Home vs. Dreyer, ISO 111. App. 574, Sec. 153. Indemnity Co. vs. Watero, I'lO Md. 673', Sec. 19. Indiana & Ohio Live Stock Ins. Co. vs. Bender, 32 Ind. App. 287, Sec. 106. Indianola vs. Gulf W. T. & P. By., 56 Tex. 504, Sec. 136. Ingela vs. Sutliff, 36 Kan. 4144, Sec. I16i. Engersoll vs. Baker, 411' Mich. 48, Sec. 2. vs. Koe, 65 Barb. 346, Sec. 14; Tnglis vs. State, 61 Ind. 212, Sec. 166. Ingraham vs. Maine Bank, 13 Mass. 208? Sea. 156. Ingram vs. Greenwade, 12 Ky. L. Rep. 942, Sec. 181. vs. McCombs, 17 Mo. 558', Sec. 157. vs. State, 27 Ala. 17, Sec. 232. Inhabitantsi of Tresoott vs. Moan, 50 Me. 347, Sec. 121; Inkster vs. First Bank, 30 Mich. 143, Sec. 115. Inman vs. Sherrill, 29 Okl. 100, Sec. 164. Insurance Co. vs. Doll, 35 Md. 89, Sec. 49. vs. Hauk, 83 Mo. 21, Sec. 81. rai. McGookey, 3» 0. S. 565, Sec. 241, TABLE OF CASES. 571 (References are to sections.) International Harvester Co. v&. Fleming, 8B A. 843, Sec. 57. International Hotel Co. tb. Flynn, 141 HI. App. 532, Sec. 143. Iowa Loan & Trust Co. vs. Haller, ^"Si Iowa 645, Sec. 90. Irby vs. Livingston, 8'1' Ga. 281, Sec. 24S. Iriek vs. Black, 17 N. J. Eq. 189, Sec. 1115. Irons vs. WoodfiU, 30 Ind. 40, Sec. 93. Iroquois Mfg. Co. vs. Annan-Burg Milling Co., 179 Mo. App. 87, Sec. 190. Irwin vs. Backus, 25 Cal. 214, Sec. 221. vs. Crook, 17 Col. M, Sec. lU, vs. Thompson, 4 Bibb (Ky.) fe. Sec. 22. Isnard vs. Torres & Marquez, 10 La. Ann. 103', Sec. 74. Issaquan Coal Co. vs. U. S. Fidelity & Guar. Co., 1216 Fed. 89, Sec. 239. IVes vs. Bosley, 35 Md. 262, Sec. 8, 10. vs. Hulce, 17 111. App. 35, Sec. 185. vs. Merchants Bank, 112 How. 159, Sec. 188i. Jack VS'. Morrison, 48 Pa. 113, Sec. '255. Jackson vs. Fidelity & Casualty Co., 75 Fed. Rep. 359, Sec. 241w VS. Jackson, 7 Ala. 791, Sec. V&. vs. Lowe, 1 Bing. 9, Sec. 29. Jaequemin« vs. State, 48 Miss. 280, Sec. 147. Jacques vs. Fackney, 64 HI. 87, Sec. 260. Jacobson vs. Metzgar, 43 Mich. 403, Sec. 213. James vs. Day, 37 Iowa 164, See. 90. vs. Hendree, 34 Ala. 488, Sec. 138. VB'. Jacques, 2i6 Tex. 320, Sec. 244. vs. Williams, 5 Bam. & Ad. 1109, Sec. 26. Jamiesoa vs. Holm, 6® HI. App. 119i, Sec. 6', 102, Jarratt vs. Martin, 70 N. C. 4'39, Sec. 1117. Jane's Ex. vs. Piatt, 47 0. S. 262, See. 203, 205', W&. Jefferson vs. Asch, 53 Minn. 44©, Sec. 142. Jeffery vs. Underwood, I Ark. 108, Sec. 122. Jemisou vs. Governor, 47 Ala. 390, Sec. 114. Jenkins vs. Clarkson, 7 0. 7B, Sec. 82, 84. vs. Harrisson, 66 Ala. 346, Sec. 2». vs. National Bank, 5® Me. 275, Sec. 99. vs. Reynolds, 3 Brod. & Bing. 14, Sec. 2a vs: Skillern, 5 Yerg. (Tenn.) 28S,'Sec. 161. Jenrner vs. Morris, 3 DeG. F. & J. 46., See. 259. Jenness vs. City of Black Hawk, 2 Colo. 578, Sec. l&l. vs. Cutler, 12 Kas. 500, Sec. 83. Jerauld vs. Trippet, 62 Ind. 122, Sec. 99. Jerman vs. Stewart, 12 Fed. Rep.- 266, Sec. 203, 20&, Jerome vs. Ortman, 66 Mich. 668, Sec. 122. Jessup vs. United States, 106 U. S. 147, Sec. l'46. Jester vs. Gustin, IBS' Ind. 287, Sec. 21S. 572 TABLE OF CASES. (References are to sections.) Jewell VS. Van Steenbuigh, 5S N. Y. 85, Sec. 17S. Jewett VB. Crane, 35 Barb. 208', Sec. 206. Jewefct Pub. Co. vs. Butler, ISO Mas8-. SW, Sec. 138, Job vs'. Harlan, 13 0. S. 486, Sec. 1»1. Johnson vs. Brown, SI Ga. *98i. Sec. 52. vs. Buck, 331 N. J. L. 33®, Sec. 29. vs. Eaiton Milling Co., 1® Col. 331, Sec. V3Z. YS. Elwood, 82 N. Y. 362; Sec. 193. vs. Mint, 34 Ala. 073, See. 188. vs. Goldsborough, 1 Harr. & J. (Md.) 409', Sec. 1»1. vs. Hacker, S Heisk. (Tenru.) — , Sec. 87. vs. Harris, 69 Ind. 305, Sec. 118. vs. Harvey, 84 N. Y. 363, Sec. 6S, 2173. vs. Hicksi' Guardian, 97 Ky. 116, Sec. 22l4i vs. Hogan, 37 Tex. 77, Sec. 223. vs. Mann, 77 Va. 26®, Sec. 100. vs. McGruder, 15 Mo. 365, Sec. 22. VB. Noonam, 16 Wis'. 687, Sec. 198. vs. Reed, 47 Neb. 382; Sec. 185. vs. Staplebon Co., 132 Ga. 164, Sec. 3®. vs. Success Brick Mach. Co., 93 Miss. 169, Sec. 96w vs. Ward, 21 Ky. L. Hep. 788, See. 188. V8'. Weajtheiwax, 9 Kan. 75, Sec. 109. vs. Williams, 1111 Ky. 289, Sec. 170. vs. Young, 20 W, Va. 614, Sec. 23, 90, 100. vs. Ziiik, 51 N. Y. 338., Sec. 23, 251. Johnston vb. Chapman, 3 Penn. & W. (Pa.) 1I8> Sec. 61i. vs. Oolei, 102' Towa 109, Sec. 109. vs. Kimball, 39 Mich. 187, Sec. 140. VB. Maples, 49 111. 101, Sec. 217. vs. May, 76 Ind. 298, Sec. 20, 77. vs. Patterson, 114 Pa. 398, See. 15, 108. Jonea vs. Baoon, 145 N. Y. 446, Sec. 34. vs. Bangs, 40 O. S. 189, Sec. 74. vs. Beach, 2 DeGex. M. & G. 886, Sec. 119. vs. Blanton, 6 Ired. Eq. (N. C.) 115, Sec. 263, 273. VBi. Bradford, 25 Md. 305, Sec. 271. va. Britt, 168 F. 852, Sec. 57. vs. Droneberger, 23 lind. 74, Sec. 183. vs. Gibson, 82 Ky. 5611, Sec. 248. vs. Goodwin, 39 Cal. 403, Sec. 10. vs. Gordon, 82 Ga. 570, Sec. 228. vs. Harris, 90 Ark. 51, Sec. 24S'. VB'. Trvine, 23 Miss. 361', Sec. 220. vs. Jones, 3S Mo. 429, Sec. 206'. vs. Jones, 58 Ky. 373, Sec. 222. vs. Lucas County Commissioners, 57 O. S. 189', Sec. 1641 vs. Newman, 36 Hun 634, Sec. 146. TABLE OP OASES. 573 (References are to sections.) Jones vs. Orchard, 16 C. B. 614, Sec. 279. Ts. Quinnopiack Bank, 29 Connj. 2S> Sec. 256. vs. Rosedale St. Ey., 73 Tex. 363, See. 1B7. vs. Kountree, 11 Ga. App. 181, Sec. 197. VB. Sardhett, 61: Iowa 520. Sec. 85. vs. Short, 53. Ore. SBS, Sec. 201. vs. Shopfceir, 1 Kelley (Ga.) 294, Sec. 34. vs. Trimble, 3 Eawle (Pa.) 391, Sec. 280. vs. Ward, 71 Wis. 162, Sec. 102. Jordan vs. AdamS', 7 Ark. 3i4l8, Sec. 282. vs. Agawam Woolen Co., 106 Mass. 571', Sec. 18Sw vs. Dobbins, 122 Mass. 168, Sec. 71, 11». vs. Kavamaugh, 63 Iowa 162, Sec. 125, 131. Joalyn. vs. ColKnson, 26 HI. 61', Sec. 9. vs'. Eastman, 4'6 Vt. 2S&, Sec. 96. JoBselyn vs. Edwards, 57 Itad. 212, Sec. 248.. Journal Pub. Co. vs. Barber, 165 N". C. 478, See. 24& Judah VB'. Zimmerman, 22 Ind. 388, Sec. 132. Judge of Probate vs; Couch, 59 N. H. 39, Sec. 220. VS. Toothaker, 83' Me. 195, Sec. 224. Junction City vs. Keefe, 40 Kas. 276, Sec. 228. Justice vs. Lang, 42 N. Y. 403, Sec. 28. vs. Tallman, 86 Pa. M7, Sec 40. Justices vs. Ennds, 5 Ga. 569, Sec. 21. Kagay vs'. Trustees, 68 111. 75, Sec. 186. Kaler vs. Hise, 79 Ind. 301, Sec. 88. Kane vs. Casgrain, 69 Wis. 430, Sec. 199. vs. Corteay, 100 N. Y. 132, Sec. 86: vs. State, ex rel.. Woods, 78 Ind. 103', Sec. 254. Kansas City Terra Cotta Lumber Co. vs-. Murphy, 49 Neb. 674, Sec. M)8l Kansas City vs. O'Connell, 99 Mo. 357, Sec. 131. Kansas City Sewer Pipe Co. vs. Thompson, 1120 Mo; 218, Sec. 131. Karr vs. Peter, 60 HI. App. 209, Sec. 13&. Kasson vs. Brocker, 47 Wis. 79, Sec. 181'. Kattleman vs'. Guthrie's Estate, 142 III. 367, Sec. 226. Katz vs. Moessinger, 110 111. 372, Sec. 279. Kaufman vs. Seaboard Air Line Ry. Co., 10 Ga. App. 248, Sec. 214. Kaufmann vs. Cooper, 46 Neb. 644, Sec. 76-a, 131. Kautzman vs. Weirich, 26 0. S. 332, Sec. 117. Kay VS'. Groves, 6 Bi-ng. 276, Sec. 18, 60. Keach vs. Hamilton, 84 III. App. 4113, Sec. 281. Kealhofer vs. Emmert, 79 Md. 248, Sec. 218'. KeaJing vs. Vansickle, 74 Ind. 529, Sec. 112. Kearney vs. Andrews, 10, N. J. Eq. 70, Sec. 160. vs. Sasoer, 37 Md. 264, See. 22il. 574 TABLE OF CASES. (References are to sections.) Kearsley vs. Cole, 16 M. & W. 128, See. 92, 114. Keate vs. Temple, 1 B. & P. 158, Sec. 36. Keel vs. Larkin, 72 Ala. 403i, See. 2A&. Keen vs. Whittington, 40 Md. 489', Sec. 134, 161'. Keirn vs. Andrews, 59' Miss. 39, See. IW. Keiser vs. Beam, 117 Tai. 3il, Sec. 274. Keith vs. Goodwin, 31 Vt. 2I68, Sec. 75'. Keith County vs. Ogalalla Power & Irrigation Co., 64 Neb. 36, See. 120, Keithler vs. Foster, 22 0. S. 27, Sec. 1!78. Keithsburg & E. R. Pv. vs. Henry, 90 III. 255, Sec. 190. Kellar vs. Williams, 10 Bush. (Ky.) 216', Sec. 254. Keller vs. Ashford, 13S U. S. 610, Sec. 90. vs. Boatman, 49 Ind. 104', Sec. 282. Kelley vs. 'VWiitniey, 45 Wfe. 110, Sec. 255i Kellock'S Case, 3 Ch. App. 769, Sec. 2S2. Kellog vs. Ho'wes-, 93 Cal. 586, Sec. 188'. vs. Miller, 22 Ore. 406, See. 252, vs. Scott, 58 N. J. Eq. 344, Sec. 76i Kellogg vs. Kimball, 142i Mass. 124, Sec. 206. vs. State, 43 Miss. 57, Sec. 232, 246. Kelly vs. Herrick, IBl Mass, 373, Sec. 255. vs. State, etc., 25' 0. S. 567, Sec. 19, 21, 1156. vs. West, 80 N. Y. 1S9, See. 221. Kemp vs. Finden, IE M. & W. 421, Sec. 2,71, 283. Kemper vs. Galveston Co., 73' Tex. 210, Sec. r54. Kendrick vs. Forney, 22 Gratt. 748, Sec. 282. Kemnedy, In re, 129 Cal. 384, Sec. 184. Kennedy vs. Brown, 21 Kan. 171, Sec. 213'. vs. Goss, 38. N. Y. 330, Sec. 88. vs. Pickens* 3 Tred. Eq. N. C. 147, Sec. 248'. Kennedy, etc., Co. vs. S. S. Const. Co., 123 Cal. 584, Sec. 57. Kenneweg Co. vs'. Finney, 981 Md. 114, Sec. 58. Kernvforthy vs. Sawyer, IBS Mass. 28, Sec. 92. Kenyon vs. Farris, 4/7 Conn. 510, Sec. 25'9'. Keokuk vs. Love, 31 Iowa llO, Sec. 2'45. Keokuk County Bank vs. Hall, 106 Iowa 540, Sec; 104. Kepley vs. Carter, 40 Kan. 72, Sec. 50. Kerr vs. Cameron, 19 U. C. 0. P. (Q. B.) Sm, Sec. 9^ vs. Reece, 27 Kan. 469, Sec. 208'. vs. Shaw, TS Johns. 236, Sec. 27. Kemmerer vs. Wilson, 31 Pa. ll'O, Sec. 99. Kern'Ochan vs. Murray, 111 N. Y. 306', Sec. 71, 119'. Kester vs. Hill, 42 W. Va. 611', Sec. 224. Ketler vs. Thompson, IB Bush. (Ky.) 267, See. 268. Keyes vs. Allen, ^5 Vt. 667, Sec. 43. Kiel vs. Choate, 92 Wis. 517, Sec. 278. Kiernan vs. Cameron, 66 Miss. 442, Sec. 187. . Kiersted vs. Orange & Alexandria R. R. Co., 69 N. Y. 343', Sec. 142. TABLE OP CASES. 575 (References are to sections.) KUgore vs. Magee, 85 Pa. 40r, Sec. 145. Killian vs. Ashley, 24 Ark. 511, Sec. 8, 10, 57. vs. Clark, 111 U. S. 784, Sec. 181. Killfoil vs. Moore, 40 S. W. (Tex. Civ. App.) 1024, Sec. 168. Kilpatritek vs. Haley, 6 Col. App. 407, Sec. 198. Kimball vs. Baker, 62 Wis. 5216, Sec. 77, 125.. vs. Newell, 7 Hill 1116, Sec. 104. VS-. Roye, 9 Ric!h. La.w (S. C.) 286, Sec. 58. Kimball Ptg. Co. vs. Soutbem Land Impravemeiit Co., 57 Minn. SJ; Sec. 186. Kimmel vs. Lowe, 28 Milin. 265, Sec. 248'. Kinard vs. Baird, 20 S. C. 2fI1, Sec. 249. Kincaid vs. Yates, 63 Mo. 46, Sec. 97» Kindf s Appeal, 102 Pa. 441, Sec. 90. King vs. Baldwin, 17 Johns'. 384, See. ITO. vs. Bartterson, IS R. I. 117, Sec. 66. vs. Downey, 24 Ind. App. 262, Sec. 101. vs. Murphy, 4S Neb. 670, Sec. 76-a. vs. Nichols, 16 0. S. 80, Sec. 156, 170. V8. State, 81 Ala. 92i Sec. 109. vs. State, 18 Neb. 375, Sec. 232. King County vs. Ferry, 5 Wash. 536, Sec. 74, 87, IBS. Kingsbury vs. Westfall, e>V N. Y. 356, Sec. 2. Kinney vs. Sdimitt, 12 Hun 521, Sec. 124. Kirby vs. W. S. & L. P. Ry. Co., 109 HI. 4112, Sec. 49. Kirkendall vs. Hartsock, 58 Mo. App. 234, Sec. 214. Kirkpatrick vs. Howk, 80 111. 122, See. 98. Kirschbaum & Co. vs. Blair, 98 Va. 35, Sec. 76. Kissire vs. Plunkett-Jarrell Co., 103 Ark. 473, Sec. 16, 91, 118. Kitson vs. Farwell, 1S2 111. S^, Sec. 110. Kittridge vs. Stegmier, 11 Wash. 3, Sec. 115. Klaproth vs. Greenberg, 147 111. App. 380, Sec. 215. Klein vs. Funk, 82 Minn. 3, Sec. 280. vs. Kern, 94 Tenn. 34, Sec. 61. Kleinlhaus vs. Generous', 26 0. S. 667, Sec. 80. Klepper vs. Borchsenius, 13111. App. 318, Sec. 262. Kline va. Raymond, 70 Ind. 271, Sec. 66, 67. KlLngenBmith vs. Klingensmith, 31 Pa. 460, Sec. 114. Klipp# vs. Oppenst-ein, 8 Colo. App. 187, Sec. 205. Klopp vs. Lebanon Bank, 46 Pa, 88, Sec. Ui. Klosrterman vs. Olcott, 2Si Neb. 382, Sec. '66. vs. United Elec. Co., 101 Md. 29, Sec. 57. Knapp VS-. Swaney, 56 Mich. 346', Sec. 131. vs. Van Etten, 50 Hun 428', Sec. 188. Knepper vs. Glenn, IS Iowa 730, Sec. 226. Knickerbocker vs. Wiloox, 83 Mich. 200, Sec. II. Knickerbocker Trust Co. vs. Carteret Steel Co., 82 Atl. 146, Sec. 248. Knight vs. Charter, 2-2 W. Va. 4'22, Sec. 99. vs. Dunsmore & Chambers, 12 Iowa 35, Sec. 8. vs. Waters, 18 Iowa 34.5, Sac. 182. 576 TABLE OP CASES. (References are to sections.) Knighton vs. Curry, 6a Ala. 404, Sec. 28a. Knotts vs. Butler, 10 Rich. Eq. (S. C.) 143, Sec. 71. Knowlton vs. Hersey, 76 Me. 345, Sec. 59. Knox vs. Kearns, 73 Iowa 286, Sec. 224. Kmox Co. vs. Johnson, 124 Ind. 145, Sec. 148. Knox Co. Bank vs. Lloyd's Admrs., liS O. S. 3S3, Sec. 78. Koch vs.. Williams, 82 Wis. 1®6, Sec. 28'. Koch's Estate, 1'48 Wis. 548, Sec. 262. Koelling vs. Wachsning, 174 111. App. 321, Sec. 1®6. Koelsch vs. Mixer, Admr., 52 0. S. 207, Sec. 276. Koenigsberg vs. Lenmig, 1®1 Pa. 171', Sec. 57, 92. Kohn Bros', vs. Washer, 69 Tex. 67, Sec. 12. Konitzky vs. Meyer, 49' N. Y. 571, Sec. 27'9, 286. Kontlander va. Elston, 2 C. C. A. 657, Sec. 2S2. Kountz vs. Kennedy, 63 Pa. 187, Sec. 74. Kountze vs. Omaha Hotel Co., IW U. S. 37S, Sec. 17©, MS3; 189. Krafts' vs. Crelghton, 3! Eioh. L. (S. C.) 27'3, See. 279-. Krall vs. Libbey, 53 Wis. 292, Sec. 190. Kramer vs. Bankers' Surety Co., 90 Neb. 301, Sec. 2'47. Kramph's Executrix vs. Hatz'a Executors, 52 Pa. St. 5e&, Sec. &, 2T5. Kranichfelt vs. Slattery, 33 N. Y. S. 27, Sec. 123. Kreider vs. laenbice, 123 Ind. 10, Sec. 261. Kretsohmar vs. Bruss, 10» Wis. 396, Sec. 76-a. Krone vs. Cooper, 43 Ark. S4ff, Sec. 185. Krug vs'. Biehop, 44 0. S. 221, Sec. 193. Kuhl VS'. Chamberlain, WO Iowa 546, Sec. 17. Kulp VS'. Brant, 162 Pa. 222, Sec. 108'. Kunkel vs'. Fitzhugh, 22 Md. 567, Sec. 2'5i5.. Kuns vs. Young, 34 Pa. 60, Sec. 104. Kunz vs. Boll, 140 Wis. 60, Sec. 76-b. Kunzweiler vs. Lehman, 70 N. Y. S. 290, Sec. 76-a. Kuriger vs. Joest, 22 Ind. App. 638, Sec. 134. Kyger vs. Sipe, 80' Va. 507, Sec. 11-a. Kyle vs. Bostick, 10 Ala. 5819, Sec. 83i. Labbe vs. Bemardy, IS© Ind. 551, Sec. 274. LaBellelron Works vs. Quarter Sav. Bank, 82 S. E. 614, See. 122. Lackawanna Trust & Safe Dep. Co. vs. Gomeringer, 236 Pa. 179, Sec. 244. Lankey vs. Steere, 121 111. 598, Sec. 100. Lacoste vs. Bexar Co., 2iS Tex. 420, Sec. 174. Ladd vs. Board, 80 HI. 233, See. 108. vs. Chamber of Commerce, 37 Oreg. 49, Sec. 275. La Du-King Mfg. Co. vs. La Du, 30 Minn. 473, Sec. 25. La Farge vs. Herter, 9 N. Y. 241, Sec. 97. LaFayette Co. vs'. Hixon, 69 Mo. SSlj Sec. 98. TABLE OP CASES. 577 (References are to sections.) LaFayette Sav. Bank to. St. Louis Stonieware Co., 2 Mo. App. 2991 Sec. 148. Lagomersino vs. Gianini, 146 Cal. 545', Sec. 57. Laiug V8'. Lee, 20 N. J. Law 337, Sec. 27. Laingor vs. Lowenthal, 1511 111. App. 999, Sec. 57. Lake vs. Brubton, 8 DeG. M. & G. 440, Sec. 244. TO. Hargis, 82 Kan. 711', Sec. 214. vs. Thomae, 84 Md. «)S, Sec. 76, I'OO. Lakeman vs. Mountstephen, 7 Bng. & Jr. App. 17, Sec. 38'. Lallande v». Trezevant, 39 La. Ann. 8S0, Sec. 196. Lamb to. Shaw, 49 Minn. 607, Sec. 1S7. Lambert V9. Haskell, 80 Cal. 611, Sec. 194, MS, 196. Lambden vs. Conoway, 5 Hair. (Del.) 1, Sec. 210. Lamm & CoL vs. Colcord, 22 Okl. 493, Sec. 52. LammoD vs'. Feuaier, IIT U. S. 17', Sec. 164. Lambredht vs. State, 57 Md. 240, Sec. 2118. Lane to. Doty, 4 Barb. 580, Sec. 119. vs. Duchac, 73 Wis. 646, Sec. 51. vs. Howell, 1' B. J. Lea (Tenn.) 276', Sec. 87. vs. Hyder, 163 Mo. App. 688, Sec. 9'li-a. vs. Moon, 103 S. W. 2111, Sec. 114. vs. State, 24 Tnd. 421, Sec. 2:19. Lane Implement Co. vs. Lowder, 65 Pac. Rep. (Okl.) 926i Sec. 203. Lancaster Co. vs. Callahan, 68' Mimn. 277', Sec. 107. Lance vs. Pearce, 101' Ind. 595, Sec. 36. Landa va. Heerman, ®5 Tex. 1', Sec. 181. Landis vs: Royer, 59 Pa. 95, Sec. 42. Lange vs. Benedict, 73 N. Y. 12, Sec. 1198. Langdon vs. Hughes, 107' Mass. 272, Sec. 38. vs. Rithardson, 5» Iowa 610, Sec. 36. Langford vs. Freeman, 60 Ind. 4©, See. 45. Langworthy vs-. McKelvey, 25 Iowa 48, Sete. 107. Lansley to. Nietert, 78 Iowa 758', Sec. 197. Lansdale's Admm. to. Cox, 7 T. B. Mon. 401, Sec. 262. Large vs. Steer, lEl Pa. 30, Sec. 193i. Larsen to. Winder, 20 Wash. 419, Sec. 126. Larson vs. Jensen, 5S Mdch. 427, Sec. 3©. vs. Wyman, 14 Wend (N. Y.) 2i46, Sec. 36-. LaRose, et al., to. Loganspprt Nat. Bank, 102 Ind. 332', Sec. 6, 71', 107, 126, 130. Lasher vs. WiUiamson, S© N. Y. 619, Sec. 117. Lashus vs. Matthews, 75i Me. 446, Sec. 172. Lascelles vs. aark, 204 Mass. 36i2, Sec. 66. Latham vs. Houston Flour MUls, 68 Tex. 127, Sec. 8', 10. Lathrop vs. Atwood, 21 Corm. 117, Sec. 281. Lawrenson vs. Butler, 1 Sch. & Lef. 13, Sec. 28. Lauman vs. Nichols, 15 Iowa 161', Sec. 90. Lauer Brewing Co. vs. Riley, 195 Pa. 449, Sec. 106. Law vs. East India Co., 4 Ves. Jr. 824, Sec. 2. 578 TABLE OF CASES. (References are to sections.) Law's Estate, 144' Pa. 499, Sec. 166,. Lawson vs. Wright, l Cox. a7&, Sec. 271. Lawrence vs: Doolan, 68 Cal. 309, See. 144. ^ vs. McCalmcnt, 2 How. (U. S.) 426, Sec. IB, IS, ^, 50. vs. Oakey, 14 La. 387', See. 10. vs. Thorn, a Wyo. 41*, Sec. 83. Layer vs. Nelson, 1 Vem. 450, Sec. 262. Laylin vs. Knox, 41 Mich. 40, Sec. 2i31. Lazelle vs. Miller, 40 Ore. 549', Sec. 90. Lea vs. Collins, 36 Tenn. 39^, Sec. 138'. Leal vs. State, 51 Tex. Cr. App. 425, Sec. 228. Leach vs. Fleming, 85 N. C. 447, Sec. 121. Leachman vs. Dougherty, SI III. 324, Sec. 172. Leake vs. Ball, 116 Ind. 2:14, Sec. 142'. Leavitt vs. Rosenberg, 83 0. S. 230, Sec. 202. Leckie vs. Scott, 5 La. 631, Sec. IQ. Ledbetter vs. McGhees, 84 Ga. 227, Sec. 40. Lee vs. Burrell, 51 Mich. 132, Sec. 281. vs. Charmley, 20 N. D. 570, Sec. 1164. vs. Dick, 10 Peters 482, Sec. 18, 49, 63. vs. Hastings', 13 Neb. 508, Sec. 17. vs. Jones, 17 C. B. N. S. 482, Sec. 15', 108. vs. Lee, 67 Ala. 406, Sec. 224. VB-. Manley, 154 N. C. 244, Sec. 96. vs. Peckham, 17 Wis. 383, Sec. 97. vs. State, 25 Tex. App. 331, Sec. 231. vs. Wisncr, 38 Mich. 82, Sec. 16, 57. vs'. Yandell, 69 Tex. 34, Sec. ll'-a, 104. Lee Co. vs. Welsing, 70 Towa 198, Sec. 109. Leeds vs. Dunn, 10 N. Y. 469', Se(c. 76. Leeper vs. Paschal, 70 Mo. App. 117-, See. 264. Leesley Bros-, va. Rebori Fruit Co., 162' Mo. App. 1©5, Sec. 49, Leftkovitz vs. First Nat. Bank, 152 Ala. 521, Sec. 57, 61. Leggett vs. McClelland, 39 0. S. 624, Sec. 253. Leghorn vs. Nydell, 39 Wash. 17, Sec. 76-b. Lehigh Coal & Iron Co. vs. Scallen, 61 Minn. 63', Se«s. 50. Lehman vs. McQuown, 31 Fed. Rep. 186, Sec. 196. vs. Robertson, 84 Ala. 489, Sec. 166. Leigh vs. Taylor, 7 Bam. & Cr. 491, Sec. Ii63. Lei'ghton vs. Brown, 98' Mass. 515, Sec. 214. Lemmert vs. Guthrie Bros., 69 Neb. 409, See. 61, 67. Lemmonj vs. Strong, 55 Conn. 443, Sec. 51. vs. Whitman, 73 Ind. 318, Sec. 88'. Lemp Brewing Co. vs. Secor, 21 Okl. 537, Sec. 2B-a. Lengle vs. Smith, 48 Mo. 27©, Sec. ISl. Lennox vs. Brower, 160 Pa. 19'1, Sec. 48'. vs'. Murphy, 171 Mass, 370, Sec 57. TABLE OF CASES. 579 (References are to sections.) Leonard vs. Speidel, 104 Mass. 369, Sec. 144. vs. Vredenburgh, 8 Johns. 39, Sec. 27. va. Wildes, 36 Me. 266, Sec. 8, 9-, 10. Lerch vs. Gallup, 67 Cal. 9951, Sec. 32. Leroux vs. Brown, 12 C. B. 801', Sec. 47. Lescouzeve vs. Ducatel, IS La. Ann. 470, Sec. 171. Lesher vs. U. S. Fidelity & Guar. Co., 239 HI. 500, Sec. 18. Leslie vs. Conway, 59 Cal. 442, Sec. 93. Lester vs. Houston, 101 N. C. 605, Sec. 118. Lester Piano Co. vs. Romney, ll26i Pac. 325, Sec. €©. Levy vs. Cohen, 92 N. Y. S. 1074, Sec. 52. vs. Merrill, 4 Greenl. 180, Sec. 27. Lewark vs. Carter, 117 Ind. 206, Sec. 170. Lewis vs. Armstrong, 80 Ga. 402, Sec. 114. vs. Brewster, 2 McLean 31, Sec. 67. vs. Collier, 47 So. 700, Sec. 196. vs. Lee Co., 73 Ala. 148v Sec. 174. vs. Maulden, 93 Ga. 768, Sec. 185. vs. Palmer, 28 N. Y. 271, Sec. 244, 250. vs. United States., 92 V. S. 918, Sec. 252. Lewis, Admr. vs. U. S. Fidelity & Guar. Co., 144 Ky. 426, Sec. 236, 244, 248. Liewiston vs. Gagne, 89 Me. 396, Sec. 109. Lexington & West Cambridge K. K. vs. Elwell, 90 Mass. 371, Sec. 129. hey vs. Wise, IS La. Ann. 39, Sec. 19. Lieberman vs. Mrst Nat. Bank, 45 Atl. Eep. (Del.) 901, Sec. 15, 106. Lidderdale vs. Robinson, 2 Brock. 169, Sec. 244, 249, 263. Liddell vs. Wiswell, S9 Vit. 366, Sec. 272, 273. Liebke vs. Thomas, 116. U. S. 609, Sec. 287. Liilard vs. Lillard, 44 Ky. 340, Sec. 143. Lilly vs. Hays, 5 Ad. & Ell. 548., Sec. 142. vs. Roberts, 58 Ga. 363, Sec. 98.. Liles vs. Rogers, 113 N. C. 197, Sec. 244. Lime Rock Bank vs. Mallebt, 42 Me. 348', Sec. 83. Lincoln vs. Chapin, 132 Mass. 470, Sec. 172. Lindsay vs. Parkinson, 5> Irish Law Rep. 124, See. 77. Lindsey vs. Attorney Gemeral, 33 Miss. 508, Sec. 145. vs. Hewitt, 42 Ind. App. 573, Sec. 2M. Linder vs. Lake, 6 Iowa 164, Sec. 136. Lingenfelter vs. Bowman, ISS Iowa 649, Sec. IS; Lingle vs. Cook, 32 Gratt. 262, Sec. 219. Lininger vs. Wheat, 49 Neb. 567, Sec. 57. Linn vs. MicLean, 85 Ala. 250, Sec. 28. Linn County, etc., vs. Farris, 52 Mo. 75, Sec. 13, 1217. Limvill vs. McDowell, 12.7 111. App. 303, Sec. 190. Lionberger vs. Krieger, 88 Mo. 1160, Sec. ll-a, 80, 132, 134. Lipscomb vs. Grace, 2« Ark. 23il, Sec. 287. Little vs. Bliss, 55 Kan. 94, Sec. 212. Liifctlefield vs. State, 1 Tex. App. 722, Sec. 231. 580 TABLE OP CASES. (References are to sections.) IiittletoD/ VS. BurgesB, 16 Wyo. 56, Sec. 195, 197. TS'. Frank, 70 Tenn. 300, Sec. 208. vs. Richardson, 34 N. H. 17», Sec. 2)86. vs. State, 46 Ark. 413., Sec. 23il. Livermore Falls Trust & Banking Co. vs. Richmond Mfg. Co., 108 Me, 206^ Sec. 11& Livingston vs. Anderson, 80 6a. 175', Sec. 246. vs. Exum, 19 S. C. 223', Sec. 197. vs. Fidelity & Dep. Co., 76 0. S. 263, Sec. 230. vs. Marshall, 82 Ga. 281, Sec. 117. vs. Woods, 20 Mont. 91, Sec. 166. Lloyd & Co. vs. Matibhews, 223' 111. 477, Sec. 11: Lloyd's vs. Harper, 1'6 Ch. Biv. 290, Sec. 71, W®. Lobaugh vs. Thompsom, 74 Mo. '600, Sec. 104. Lobenstedn vs. Hymisoni, 90 Tenn. 606, Sec. 203. Locke vs. MeVean, 3® Midh. 473, Sec. 125. Lockwood vs. Penn, 22 La. Ann. 29, Sec. 102. Loeb vs. Fleming, 15 HI. App. 503, Sec. 260. Loehr vs. Colburn, 92 Ind. 24, Sec. 256. Loew vs. Stocker, 68 Pa. 226., Sec. 10®. Logan vs. Anderson, IS B. Mon. 114, Sec. 252. vs. Ogden, Wl Tenn. 392, Sec. 8. vs. Plummea-, 70 N. C. 388, Sec. ISB. Lomax vs. Witkowsky, 124 HI. App. 261, Sec. 57. Lompoc Valley Bank vs. Stephenson, 104 P. 449, Sec. 57. London Assurance Co. vs. Bold, 6 Ad. & Ell. 514, Sec. 2, 53. London Bank vs. Parrott, 126 Cal. 472, Sec. 50. London, etc.. Bank vs. Smith, 101 Cal. 4'IS, Sec. 61. London General Omnibus Co. vs. HoUoway, 2 K. B. (1912) 7S, Sec. 106i London & Brazilian Bank vs. Walker, 74 Hun 396, Sec. 197. Long vs. American Surety Co., 23 N. D. 492, Sec. 76^a, 76-b. vs. Davidson, 101 N. C. 170, Sec. 128. vs. Miller, 93 X. C. 227, Sec. 256. , vs: Seay, 72 Mo. 648> Sec. 153!. vs. Sullivan, 21 Colo. 109, Sec. 186. Longan vs. Taylor, 130 111. 412, Sec. 174. Longfellow vs. McGregor, 56 Minn. 312, Sec. 128, 135. Lonsdale vs. Lafayette Bank, 18 0. 126, Sec. 511. Loomis vs. Brown, 16 Barb. 325, Sec. 196'. Looney vs. Hughes, 26 N. Y. 514, Sec. 1162. Loosemore vs. Radford, 9 M. & W. 657, Sec. 28il. Lord vs. Staples, 23 N. H. 446', Sec. 282. Lord Arlington vs. Merricke, 2 Saund. 412, S«c. 2. Louder vs. Hunter, 32 S. D. 108, See. 188. Loughridge vs. Bowland, 52 Miss. 546, Sec. 248, 279, 280. Louis vs. Brown, 7 Ore. 326, Sec. IBS'. Louisiana Bank vs. Ledoux, 3 La. Ann. 674, Sec. ll'S. Louisville Mfg. Co. \a: Welch, 10 How. 461, See. 6'5i TABLE OF CASES. 581 (References are to sections.) Louisville N. A. & C. R. Co. va. Louisville Trust Co., 174 U. S. 552. Louisville Water Co. vs. Yoiingstown Bridge Co., 16 Ky. Law Kep. 350, Sec. 135. Love vs. Jersey City, 40 N. J. L. 456', Sec. 145. V8. Rockwell, 1 Wis. 382, Sec. 190. vs. Voortiies, 19 La. Asm. 549, Sec. 200. Lovelace vs. Lovelace, 136 Ky. 452, Sec. 16. Loverin & Browne Co. vs. Travis, IBo Wis. 322, Sec. 61. Loving vs-. Auditor of Public Accounts, 76 Va. 942, Sec. 15K. Lovinger vs. First Nat. Bank, »1 IMd. 354, Sec. 97. Low Bros. & Co. vs. Anderson, 41' Iowa 47®, Sec. 11. Lowe vs. Beckwith, 14 B. Mon. (Ky.) 184, Sec. 50. vs. City of Guthrie, 4 Okl. 287, Sec. leS-. vs. Peers, 4 Bur. 2226, Sec. 136. VB. Reddan, IW Wis. 90i Sec. 101. vs. Rilesy, 57' Neb. 232, Sec. 187. Lower vs. Buchanan Bank, 78' Mo. 617, Sec. I'W. Lowman vs. Sheets, 124 Ind. 416, Sec. 25. VS-. YateS', 37 N. Y. 601, Sec. 82. Lowry vs. Adams, 22 Vt. 160, See. 51. vs. McKinmey, 68 Pa. St. 294, Sec. 23, 90, 2511. vs. Polk County, 51 Iowa 50, Sec. 166, vs. State, 64 Ind. 421, Sec. 174. vs. Tew, 26i Hun 257, Sec. 189. Luark vs. Malone, 34 Ind. 444, Sec. 41. Lucas VS'. Chamberlain, 8 B. Mon. (Ky.) 276, See. 3'4. vs. Futrall, 84 Ark. 540, Sec. 145. VS. Governor, 6 Ala. &26i. Sec. 175'. va. Owens', IIB Ind. 521, Sec. 108. vs. White Star Line Transfer Co., 70 Iowa 541, See. 148. Luce vs. Foster, 42 Neb. 8118, Sec. 126, 128i. Ludlow vs. Simond, 2 Cal. 1, Sec. 17. Ludwiok vs. Wateon, 3 Oreg. 2'5I6, Sec. 16. Luling Oil & Mfg. Co. vs. Gohmert, SO Tex. Civ. App. 606, Sec. 7i6i-a. Lumber Co. vs. Buchtel, 101 U. S. 638, See. 108. vs. Gillard, 136 Cal. 56, See. 76-a. vs. National Surety Co., 124 Iowa 617, Sec. 76-a. vs. Peterson, 12(4 Iowa 550, Sec. 76-a, 76-b. Lumpkin vs'. Mills, 4 Ga. »43, Sec. 247, 240. Lumsden vs. Leonard, 55 Ga. 374, Sec. 100. Lunsford vs.. Baskins, 6 Ala. 5lB, Sec. 186. Lusk vs. Throop, 180 HI. 127, Sec. 36. Lutt vs. Sterrett, 26 Kan. 501, Sec. 185. Lux vs. McLeod, 19 Col. 46i5, Sec. 191. Lyman vs. City of Lincoln, 38 Neb. 794, Sec. 131. vs. Sherwood, 20 Vt. 42, Sec. 78. Lynch vs. Hancock, 14 S. C. 66, Sec 246. 582 TABLE OF CASES. (References are to sections.) Lyou vs'. Crissman, S& N. C. 266, Sec. 46. vs. Hersey, 32 Hun 263, See. IftT. T». Osgood, 58 Vt. 707, Sec. 218. ■vBi. Plum, 75 N. J. Law, 882, Sec. 53. M Msuee vs. WeUs, 7 How. 272, Sec. 284. Macfie VS'. Kilanea, 6 Hawaiian 440, Sec. 281'. Machado vs. Fernandez, 74 Cal. 363, Sec. 275. Machin vs. Prudential Trus^t Co., 210 Pa. 253, Sec. 109. Macey vs. ChUdress, 2 Tenn. Ch. 438, Sec. 46. Macon & B. E. R. Co. vs. Gibson, 86 Ga. 1, Sec. 192. Mack vs. Jackson, 9 Col. 536, Sec. 196. Macklin vs. Northern Bank of Ky., 83 Ky. SW, Sec. 25S. Mackenzie vs. Ediinburg School Trustees-, 78 Ind. 189, Sec. 125. MacDonald vs. Longbotton, 1 El. & EI. 977, Sec. 49. Madison Co. vs. Johnston, 51 Iowa 162, Sec. 2214. Magee vs. Leggett, 48 Miss'. ISO, Sec. 245. Magner vs. KnowleS', 67 111. 325, Sec. 174. Magruder vs. Marshall, 1 Blackford 333, Sec. 21111. Maguire vs. Pan American Amusement Co., 205 Mass. 64, Sec. 214. Maier vs. Lanfrom, 8© 111. 513, Sec. 83. Mahurin vs. Pearson & Bellows, 8 N. H. 539, Sec. 117. Mailing Union vs. Graham, 5 L. E. C. P. 201, Sec. 152. Maingray vs. Lewis, S Ir. B. C. L. 496, Sec. 23. Mallan vs. May, 13 M. & W. 511, Sec. 49. Mailers vs. Crane Co., 92 111. App. 514, Sec. 123. Malone vs. Keener, 44 Pa. 107, Sec. 42. vs. McCflain, 3 Ind. 532, Sec. 185. vs. Philadelphia, 147 Pa. 416, Sec. 135. Mallory vs. Gillett, 2il N. y. 412, Sec. 38, 41. Malleable Iron Eange Co. vs. Pusey, 244 111. 184, Sec. 60. Mamerow vs. National Lead Co., 206 111. 626, Sec. 40, 59, 68', 71. Manchester Co. vs. Sweeting, 10 Wend. 162, Sec. 116. Mandeville vs. Reynolds, 68 N. Y. 528, Sec. 173. Mankin vs. Jones, 68" W. Va. 422, Sec. 39. Manhattan Gas Light Co. vs. Ely, 319 Barb. 174, Sec. 54. Manhattan Life Ins. Co. vs. Alexander, 89 Hun 449, Sec. 122. Manhattan EoUing Mill vs. Dellon, 113 N. Y. S. 571, Sec. 50, 55. Mamm vs. Yazoo City, 3il Miss. 574, Sec. 174. Manlove vs. Vick, 55 Miss. 567, Sec. 192. Manor Nat. Bank vs. Lowery, 242 Pa. 559, Sec. 11. Manning vs. Alger, 85 Iowa 617, See. 85. vs. Gould, 90 N. Y. 476, Sec. im. vs. Manning, 26 Kan. 98, Sec. 214. VS. MiUs, 12 Up. Can. (Q. B.) 515, See. 51. TABLE OF CASES. 583 ' (References are to sections.) Many vs. Sizer, 6 Gray 141, Sec. 188. Manufacturers Bank vs. Cole, 39 Me. 18S, Sec. 78. Manufacturers Nat. Bank vs. Dickerson, 41 N. J. L. 446, Sec. 132. Manufacturers & Traders Bank vs. Dare, ©7 Hun 44, Sec. 19ft. Mansfield vs. Edwards, 136 Mass. 15, Sec. 265. Marcey vs. Crawford, 16 Comn. 549, See. 32. March vs. Allabough, 103 Pa. 33&, Sec. 13S. Marchand vs. Frellsen, 105 U. S. 423:, Sec. 188. Marchman vs. Robertson, 77 Ga. 40, See. 105. Mark vs. Hyatt, 135 N. Y. 306, Sec. 192. Marks vs. First Nat. Bamk, 79 Ala. 550, Sec. 74, 108. vs. Massachusetts Bonding & Ins. Co., 117 N. Y. S. 1019, Sec. 209. Markland Mining & Mfg. Co. vs. Kimmel, 87 Ind. 560, Sec. 6, 50, 127. Marsh vs. Cohen, 68 N. C. 283, Sec. 181. vs. Day, 18 Pick. 321, See. 63. vs. Griffin, 42 Iowa 403, Sec. 20. vs. Harrington, 18 Vt. 150, Sec. 2/71. vs. Pike, 10 Paige Ch. 585, Sec. 251. Marshall vs. Hudson, Admr., 9 Yerg. (Tenn.) 517, Sec. 284. vs. Marshall, 42 Ala. 149, Sec. 85. Marlow vs. Pitfield, 1 P. Wms. 358, Sec. 250. Mamey vs. State, 13 Mo. 7', Sec. 152'. Marree vs. Ingle, 69 Ark. 126, Sec. T&-h. Marston vs. Swett, 66 N. Y. 2)06, Sec. 45, 46. Marquis of Downshire vs. Lady Sandys, 6 Ves. Jr. 107, Sec. 179. Marmaduke vs. Peoplte, 45 Col. 3OT', Sec. 23il. Martin vs. Black, 20 Ala. 309, Sec. 57. vs. Campbell, 120 Mass. 126, Sec. 108. vs. Croker, 62 Iowa 328, Sec. 191. vs. Ellerbe's Admr., 70 Ala. 326, Sec. 273, 279, 280, 282. vs. Pramtz, 127 Pa. 380, Sec. 276. vs. Mechanics Bank, 6 Har. & John. 235>, See. 101. Ts. Skehan, 2 Col. 614, Sec. 116. vs. State, 146 S. W. 916, Sec. 231. vs. Tally, 72 Ala. 23, Sec. 221. vs. Thomaa, M How. 315, Sec. 79, 215. vs. Whites, 128 Mo. App. 117', Sec. 17. vs. Wright, e Ad. & Ell. N. S. 917, Sec. 50. Martindale vs. Brock, 41 Md. 571, Sec. 282. Martyn vs. Lamar, 75 Iowa 2i36, Sec. 67'. Marx vs. Leinkauff, 93 Ala. 458i, Sec. 208. Mason vs. Alexander, 44- 0. S. 318, Sec. 180. vs. Bogg, 2 Mylne & C. 443, 448, Sec. 252. vs. Hall, 30 Ala. 590; Sec. 43. vs. Nichols, 22 Wis. 376, Sec. 104. vs. Pierron, 69 Wis. 5815, Sec. 169. vs. Pritchard, 12 Bast. 227, Sec. 18i, 59. 584 TABUE OF CASES. (References are to sections.) Mason vs. Richards, 12 Iowa 73, Sec. 213. vs. Terrell, 3 Ga. App. 348, Sec. 231, Massey vs. Browra, 4 S. C. 8©, Sec. 114. vs. Turner, 2 Houst. (Del.) 79, See. 8. Massie vs. Mann, 17 Iowa 131, Sec. 245. Masser vs. Strickland, 17 Serg. & R. 384, See. 177. Mathews vs. Aikin, 1 N. Y. 505, Sec. 244, 262. vs. Garman, 110 Mich. 559, Sec. 78. vs. PheJps, 61 Mich. 327, Sec. 50, 59. vs. Saurin, L. R. 31 Ir. ISl, Sec. 281. vs. Switzler, 46 Mo. 301, Sec. 96. Matthews vs. Bensmore, 109 U. S. 216, See. 172. vs. HaH', 21 W. Va. 910, See. 283. vs. Towell, 138 S. W. 169, Sec. 45. Mathis vs. Morgain> 72 Ga. 517, Sec. 109. Matson vs. Wharam, 2 T. R. 80, Sec. 36. Matteson vs. Ellsworth, 33 Wis. 488i, Sec. 74. Mattoon vs. Cawing, 79 Mass. 387, Sec. 224. Mather vs. People, 12 111. 9, See. 232. Mattingly vs. Sutton, 19 W. Va. 19, Sec. 2S1. Maure vs. Harrison, 1 Eq. Cases, Abridgment 93i, Plaxiitum 5, Sec. 256. Mauran vs. BuUus, 16 Pet. 5B8i, Sec. 49. Maxey vs. Carter, 10 Yerg. (Tenm.) 521, Sec. 261. May vs. Ball, 21 Ky. L. Rep. 1679, See. 285. vs. May, 19 Fla. 373, Sec. 19. vs. WiUiams, 61 Miss. 125, Sec. 34. Mayes vs. Lane, 116 Ky. 566, Sec. 76-b. Mayer vs. Duke, 72 Tex. 445, Sec. 200. Mayberry vs. Sainton, 2 Harr. (Del.) 24, Sec. 67. Mayo vs. Hutchinson, 57' Me. 546, Sec. 11. vs. Williams, 17 O. 244, Sec. 187. Mayor of East Lake vs. DeVore, 169 Ala. 2.37, Sec. 193. Mayott vs. Knott, 16 Wyo. 108, Sec. 187. Mays vs. Cockrum, ST' Tex. 3S2, Sec. 119. vs. Joseph, 34 O. S. 22, Sec. 32, 139. Mayhew vs. Crickett, 2 Swanst. 186', Sec. 98, 214. MbAllister vs. Pitts, 58 Neb. 424, Sec. 113. MoArdle vs. MoDaniel, 75 Ga. 270, Sec. 231. MoAreavy vs. Magirl, 123 Iowa 605, See. 23, 90. McBride vs. Potter-Lovell Co., 160 Mass. 7, Sec. 266. McCalla vs. Patterson, 57 Ky. 201, Sec. 220. McCallian vs. Hibernia Sav. Soc., 83 Cal. 571, Sec. 186. McCanna & Fraser Co. vs. Citizens Trust & Sur. Co., 74 Fed. Rep. 59T. Sec. 243. McCarthy vs. Chimney Construction Co., 219 111. 616, Sec 190. vs. Holden, 54 Kani. 313, Sec. 191. TABLE OP CASES. 585 ■ (References are to sections.) MoCarty vs. Frazer, 62 Mo. 263, Sec. 218. vs. Roots, 21 How. 432, Sec. 264. McCaji;ney vs. Shepard, 211 Mo. 573, Sec. 130. MoCasland vs. Doorley, 47 111. App. S13, Sec. 43. McCaughey vs. Jacoby, 54 0. S. 487, Sec. 218. vs. Smith, 27 N. Y. 39, Sec. 75. McCelvey vs. Noble, 12 Rich. L. 167, Sec. 10. McChord vs. Fisher, 52 Ky. 193, Sec. 222. McClaskey vs. Barr, 79 Fed. Rep. 408, Sec. 71. McClatchie vs. Durham, 44 Mich. 485, Sec. 285. MoClendon vs. "Wells, 20 S. C. 5114, Sec. 200. McCleimy vs. Inverarity, 80 Kas. 569, Sec. 164. McClure vs. Andrews, 68 Ind. 97, Sec. 259. McCluig vs. Fryer, 16 Pa. 293, Sec. 63. McCoUmn vs. Gushing, 22 Ark. 940, Sec. 66, 67. MoComb vs. Kittridge, 14 0. 348, Sec. 83. McCuUoch vs. McKee, W Pa. 2189, Sec. 128. MoConnell vs. Brillhart, 17 111. 354, Sec. 30. vs. Poor, 113 Iowa 133, Sec. 7i6-a. McCk>nnon & Co. vs. Evans, 152 Ky. 491, Sec. 74. vs. Laursen, 22 N. D. 604, Sec. 65, 66, 67. McCormick vs. Bay City, 23 Mich. 457, Sec. 15, 20. vs. Irwin, 35 Pa. Ill, Sec. 244, 254. McOormick Co. vs. McKee, 51 Mich. 426, Sec. 109. McCornick vs. Thatcher, 8 Utah 294, Sec. 145. McCoy vs. Jack, 47 W. Va. 201, Sec. 90. vs. State, 37 Tex. 219, Sec. 231. MoCracken vs. German Fire Insurance Co., 43 Md. 471, See. 255w vs. Todd, 1 Kas. 148, Sec. 21. McCready vs. Van Antwerp, 24 Hun 382, Sec. 291. McCreary vs. Rodg«rs, 35 Ark. 298, Sec. 180. vs. Van Hook, 35 Tex. 631, Sec. 39. McDaniel vs. Gardner, 34 La. Anji. 341, Sec. 204. McDonald vs. Loewen, 145 Mo. App. 49, Sec. 70. vs. Magruder, 3 Pet. 470, See. 264, 278. vs. State of 111., 222 III. 325, Sec. 221. vs. Whitfield, 27 Can. (S. C.) 94, Sec. 114. McDonald Mfg. Co. vs. Moran, 52 Wis. 203, Sec. 258. McDonald, In re, 14 N. B. R. 477, Sec. 100. McDougald vs. Argonaut Land, etc., Co., 117 Cal. 87, Sec SI. McDougall vs. Walling, 21 Wash. 478, Sec. 80. MaoDowell vs. Bank, 1 Harringt. 369, Sec. 101. vs. Burwell, 4 Rand (Va.) 317, Sec. 175. vs. Laev, 35 Wis. 171, Sec. 142. MoEwen vs. Fletcher, 146 N. W. 1, Sec. 118. McFarlane vs. Howell, 91 Tex. 218, Sec. 185. vs. Wadhams, 165 Fed. 987, Sec. 65, 66. 586 TABLE OF CASES. (References are to sections.) McGee vs. Ocmnor, 1 Utah 92, Sec. 10. MoGrowan Commercial Co. vs. Midland Coal Co., 41 Mont, ail, Sec. 36. McGrath vs. Clark, 56 N. Y. 34, Sec. 72, 74. McGuire vs. Com., 7 Ky. L. Rep. 287, Sec. 231. McGurk vs. Huggett, 56 Mich. 187-, Sec. 278. McHardy vs. Wads worth, 8 Mich. 349, Sec. 117. Mclntosh-Huntingtoa Co. vs. Reed, 89 Fed. Rep. 464, Sec. 6. Mclntyre vs. Parker, 19S Mass. ISS, Sec. 217. McKaughan vs. Baldwin, 15i3 S. W. 660, Sec. 93. McKee vs. Campbell, 27 Mich. 497, Sec. 267, 271. vs. Griffin, 60 Ala. 427, Sec. im. vs. Hamilton, 33 0. S. 7, Sec. 279. vs. Needles, 123 Idaho 19&, Sec. 67. McKeeby vs. Webster, 170 Pa. 624, Sec. 114. McKellar vs. Peck, 39 Texas 381, Sec. 181. McKeckniie vs. Ward, 58 N. Y. 541, Sec. 107. McKenzie vs. Barrett, 43 Texas Civ. App. 4j91, Sec. 76-b. vs. Jacksom, 4 Ala. 230, See. 40. McKey vs. Lauflin, 48 Kans. 581, Sec. 212. McKim vs. Bartlett, 129 Mass. 226, Sec. 217. vs. Blake, 139 Mass. 598', Sec. 174. McKnight vs. Bradltey, 10 Rich. E. Q. (S. C.) 567, Sec. 281. vs. Lange Mfg. Co., 156 S. W. 977; Sec. 761-b. McLain vs. Simington, 37 O. S. 484, Sec. 20. McLaughlin vs. McGovem, 34 Barb. 208, Sec. 104. McLean vs. Towle, 3 Sand. Ch. 117, See. 250. McLendon vs. State, 92 Tenn. 520, Sec. 164. MlcLennafli vs. Wellington, 48 Kansas 756, Sec 76-a. McLeod vs. State, 69 Miss. 2211, Sec. 149. McLuckie vs. WUliams, 68 Md. 262, Sec. 198. McMahon vs. Webb, 52 Miss. 424, See. 143. McMickem vs. Comm., 5» Pa. 213, Sec. 177: vs. SafFord, 197 III. 540, Sec. 57. McMillan vs. Baker, 20 Kansas 50, Sec. 212. vs. Dana, 18 Cal. 339, Sec. 202, 205. McMullen vs. Hinkle, 39 Miss. 142, Sec. 90. vs. United States, 222 U. S. 460, Sec. 76-a. vs. United States, 167 Fed. 460, Sec. 17. vs. Winfield Bldg. & Loan Assn., 64 Kas. 298, Sec. 70. McMurray vs. Noyes, 78 N. Y. 523, Sec. 62. McNairy vs. Eastland, 10 Yerg. (Tenn.) 310, Sec. 249. McNally vs. Mercantile Trust Co., 204 Pa. 596, Sec. 7e-b. McNaught vs. MoClaughry, 42 N. Y. 22, Sec. 16. McNeil vs. Miller, 29 W. Va. 480, Sec. 289. MoPherson vs. Meek, 30 Mo. 345, Sec. 279. McRaven vs. Crisler, 53 Miss. 542, Sec. 7'3. McQuewans vs. Hamlin, 35 Pa. St. SIT, Sec. 11. TABLE OP CASES. 587 (References are to sections.) McShane vb. Howard Bank, 79 Md. 135, Sec. 130, 1T4. McTeer vs. Lebow, 85 Teim. 121, Sec. 169. MdVicar vs. Koyce, 17' Up. Cam'. (Q. B.) 528, Sec 28a. MeWhorter vs. McMahan, 10 Paige 386; Sec. 22. McCrillis vs. How, 3 N. H. 348., Sec. 97. Mead vs. Merrill, 30 N. H. 472, Sec. 105. vs. Parker, 111 N. Y. 2S9, Sec. 63. vs. White, 58 Waah. 638, Sec. 29. Meador vs. Meador, 86 Ky. 217; Sec. 281. Mears vs. Commonwealth, 8 Watts (Pa.) 223, Sec. 21. Meanx vs. Pittman, 35 La. Ann. 360, Sec. 197. Mechanics & Trader's Bank vs. Seitz, 150 Pa. 632, Sec. 101. vs. Wright, 53 Mo. 153, See. 112. Mechlenburg County vs. Beales, 111 Va. 601, Sec. 166. Medlin vs. Oomm., 74 Ky. 605, Sec. 232. Meek vs. Frajnitz, 171 Pa. 63B, Sec. 15. Meggett vs. Baum, 57 Miss. 22; Sec. 81. Megrath vs. Gray, L. R., 9 C. P. 21©, Sec. 100. Meinhard vs. Youngblood, 37 S. C. 223, Sec. 192. Meiswinkle vs. Jung, 30 Wis. 361, Sec. 8®. Melendy vs. Keen; 80 111. 395, See. 255. Mellendy vs. Austin, 69 111. 15, Sec. 118. Meilms vs. WerdehofF, 14 Wis. IS, Sec. 264. Menard vs. Scudder, T La. Amn-. 385, Sec. 18i. Menifee vs. Clark, 35 Ind. 304, Sec. 84. Mercantile Ins. Co. vs. Clark, 118 Mass. 28S, Sec. 248. Merchants Ins. Co. vs. Hauck, 89 Mo. 21, Sec. 8®. vs. Herber, 68 Minn. 420, Sec. 96. Merchants Bank vs. Honey, 58 Kas. 609, Sec. 124. Merchants Kat. Bank vs. Abemathy, 32 Mo. App. 211, Sec. 255i. vs. Oole, 831 0. S. 50, Sec. 49, 50. vs. State Bank, 93 Iowa 650, Sec 48. Meriden Britannia Co. vs. Zingsen, 48i N. Y. 247', Sec. 38. Meriden Silver Plate Co. vs. Flory, 44 O. S. 430, Sec. 115. Merle vs. Wells, 2 Camp. 413, Sec. 59. Merrells vs. Phelps, 34 Conn. 109i, Sec 227. Merriken vs. Godwin, 2 Del. Ch. 236, Sec 247. Merrimack Co. Bank vs. Brown, 12 N. H. 320, Sec. 94. Merriman vs. Barker, 1211 Ind. 74, Sec. 86. Merritt vs. Haas, 106 Minmi. 275, Sec. »5. Mersman vs. Werges, 112 U. S. 139, Sec 75. Meserve vs. Clark, 115 111. 580, Sec. 181, 190, 201. Metcalf vs. Young, 43 Ala. 643, See. 204. Metrovich vs. Jovovich, 58 Cal. 341, Sec. 206. Metz vs. The People, 6 Col. App. 57, Sec. 144. Metzner vs. Baldwin, 11 Minm. 150, Sec. 112. Metropolitan Exhibition Co, vs. Ewing, 42 Fed. Rep. 198^ Sec. 49. 588 TABUB OF CASES. (References are to sections.) Metropolitan Life Ins. Co. vs. Bender, 124 N. Y. 47, See. 134. Metropolitan Washing Machine Co. vs. Morris, 38 Vt. 303, Sec. 71. Meyer vs. Fagan, 34 Neb. 184, Sec. 208. vs. Hartraan, 72 111: 442, Sec, 31, 40. vs. Ruhstadt, 6fl 111. App. 346, Sec. 66. Meyers vs. Block, 120 U. S. 206, Sec. 182. vs. Campbell, 60 N. J. L. 378, Sec. 256v Meysenburg vs. Schllieper, 48' Mo. 426i, See. 196. Miami Co. Nat. Bank vs. Goldberg, 133 Wis. 175, Sec. 5S, 60, Micha«l vs. St. L. M. F. Ins. Co., 17 Mo. App. 23, Sec. 49. Michie vs. EUair, 60 Mich. 73, Sec. 188. Michigan State Bank vs. Iieavenworth Est., 28 Vt. 209, Sec. 71. Michigan State Ins. Co. vs. Soule, 91 Mich. 312, Sec. 113. Michlewait vs. Noel, 60 Iowa 344, Sec. 109. Middleboro Nat. Bank vs. Eichards, 55 Neb. 682, See. 23-a. Middlesex Mfg. Co. vs. Lawrence, 83 Mass. 339, Sec. 129. Middle States L. B. & C. Co. vs. Engle, 45 W. Va. 589, Sec. 63. Midgett vs. Vann, 158 N. C. 128^ Sec. 197. Mifflin's Appeal^ 08 Pa. 150,Sec. 2l5Bt Miles vs. Linnell, 97 Mass. 288, Sec. ^. Miller vs. BagweU, 3 McCord (S. C.) 420, Sec. 1261. vs. Itonovan, 13 Idaho 736', Sec. 197. vs. Dunlap, 22 Mo. App; 97, See. 49. vs. Dyer, 1 Duv. (Ky.) 263, Sec. 100. vs. Ecdes, 155 Pa. 36, See. 7©. vs. Fichthom, 3il Pa. 252^ Sec. 126. vs. Finley, 26' Mich. 249, Sec. 7S. vs. Gaskins, Sm. & M. Ch. (Miss.) 524, See. 103. vs. Grice, 2 Rich. Law (S. C.) 27, Sec. 168'. vs. iTvine, 1 Dev. & Bat. Law (N. C.) 103, Sec. 27. vs. Keranedy, 12 S. D. 478, Sec. 90. vs. Kingsbury, 28' 111. App. 332, Sec. 142. vs. Lewiston Nat. Bank, 18 Idaho 124, Sec. 67, 68. vs. Matthews, 87 Md. 464, Sec. 13. vs. Moore, 3 Humph. (Teen.) 180, Sec. 158l vs. Parker, 73 N. C. 5®, Sec. 192. vs. Ehoades, 20 O. S. 404, Sec. 139. vs. Eidgely, 32 Fed. Eep. 880, Sec. 111. vs. Spain, 41 O. S. 376, Sec. 94. vs. State, 158 Ala. 73, Sec. 232. vs. Stem, 2 Pa. 286, Sec. 84. vs. Stewart, 9 Wheat. 680, Sec. 2, 50, 76, 151, 153w vs. Stout, 5 Del. Ch. 259, Sec, 115. vs. Vaughn, 78 Ala. 323, Sec. 188. Miller-Jones Furniture Co. vs. Fort Smith Ice Co., 66 Ark. 287, Sec. 76-a. MOler-s Appeal, 315 Pa. St. 481, Sec. 252. Miller's Estate, 82 Pa. St, 113, Sec. 252. TABLE OF CASES. 589 (References are to sections.) Millet* VS. Parker, 2 Met. (Ky.) 6O81, Sec. 74. Milroy vs. Quinn, 68 Ind. 406, Sec. 6, 61, 68. Mills vs. Allen, T Jones L. (N. G.) 564, Sec. 163. vs. Brown, 11 Iowa 314, Sec. 34. vs. Gleason, 211 Cal. 2.74, Sec. 212. vs. Todd, 83 Ind. 25, Sec. 93. Mills-Carleton Co. vs. Huberty, 84 0. S. 81, Sec. 49. Milton vs. De Yampert, 3 Ala. 848, Sec. 10. Miralek vs. Huff, 41 Neb. 51I6, Sec. 34, 280. Minor vs. Woodward, 170 Mo. App. 333, See. 18. Mississippi Val. Trust Co. vs. Somerville, 85 Mo. App. 266, Sec. 18S. Mitchell. vs. Burton, 2 Head (Tenn.) 613, Sec. 161. vs. Hawley, 79 Gal. 301, Sec. 214. vs. Hydraulic Stome Co., 129 S. W. 148. vs. Eailton, 43 Mo. App. 273, Sec. 63, 65. vs. Sullivan, 30 Kas. 2311, Sec. 198. vs. Vance, 5 T. B. Mon. (Ky.) 528, Sec. 126. Mitts vs. McMorran; 64 Mich. 664, Sec. 40. Mix vs. People, 86 111. 320, Sec. 187, 201. Mize vs. Mashbum, 8 Ga. App. 408, Sec. 31. Mobile Life Ins. Co. vs. Randall, 71 Ala. 220, Sec. 85. Mobile & Girard R. R. Co. vs. Jones, 57 Ga. 198, Sec. 42. Mobile & Montgomery Ry. vs. Brewer, 76 Ala. 135, Sec. 81. Modawell vs. Hudson, 80 Ala. 266, Sec. 219. MoflEat vs. Greenwalt, 90 Cal. 368, Sec. 181. Moffitt vs. Garrett, 213 Okl. 398, Sec. 202. Moies vs. Bird, 11 Mass. 436, Sec. 9. Monro vs. Nat. Surety Co., 47 Wash. 488, Sec. 76-b. Monteith vs. Commonwealth, 15 Gratt. 172, Sec. 19, Montefiore vs. Lloyd, 15 J. Scott (N.S.) 203, Sec. 53. Montgomery vs. Dillingham,- 11 Miss. 647, Sec. 174. vs. Hamilton, 43 Ind. 451, Sec. 94. vs. Hughes, 65 Ala. 201, Sec. 153. Montgomery Railroad vs. Hurst, 9 Ala. 513, See. 76. Monson vs. Drakelly, 40 Conn. 532, Sec. 254. Monmouth Park Assn. vs. Wallis Iron Works, 56 N. J, L. 132, Sec. 135L Moore vs. Boudinot, 04 N. C. 190, Sec. 158. vs. Bmner, 31 lU. App. 400, Sec. 272. vs. Eisamaoi, 201 Pa. 190, Sec. 2/7. vs. Eure, 101 N. C. 11, Sec. 166. vs. Fitz, 59 N. H. 572, Sec. 85. vs. Gray, 26 0. S. S26i, Sec. 96. vs. Holt, 10 Gratt. (Va.) 284, Sec. 50, 58. vs. House, 64 111. 162, See. 142; vs. Huntington, 84 U. S. 417, Sec. 187. vs. Lachmund, 50 Ore. 566, Sec. 195. VS. Lassiter, 16 Lea (Tenn.) 630, See. 180, 254. 590 TABLE OF CASES. (References are to sections.) Moore vs. McKenney, 83 Me. 80, Sec. 57. vs. McKintey, 60 Iowa 3W, Sec. 121. vs. Paine, 12 Wend. 12% Sec. 102. vs. Redding, 6» Miss. 841, Sec. 8». vs. State, 106 S. W. 368, Sec. 232. vs. Stevens, 60 Miss. 809, Sec. 279. vs. Title Guaranty & Trust Co., 151 Mo. App. 266, Sec. 17. vs. Topliff, 107 111. 241, Sec. 115. vs. Withenbeiig, 13 La. Ann. 23, Sec. . Moorer vs. Andrews, 39 S. C. 427, Sec. 196. Moormann vs. Vosa, 77 Ohio 270, Sec. 113. Mooney vs. Miller, 102 Mass. 217, Sec. 110. Moran vs. Abbey, 63 Cal. 56, Sec. 259. Morbeck vs. State, 28 Ind. 86, Sec. 167. Morean vs. Stanley, 34 Col. 91, Sec. 188. Morehead vs. Citizens Deposit Bank, 113 S. W. 501, Sec. 9il-a. Morgan vs. Boyer, 39 0. S. 324, Sec. 18, 59. vs. Commonwealth, 12 Bush. (Ky.) 84, Sec. 228'. vs. Hale, 12 W. Va. 713, Sec. 139. vs. Hall & Lyon, 34 E. I. 273, Sec. 11. vs. Salmon, 13& Pae. 563, Sec. 125. vs. Smith, 70 N. Y. 537, Sec. 921, 114, 269. vs. Thompson, 60 Iowa 280, Sec. 84. Morley vs. Boothby, 3 Bing. 107, Sec. 26'. vs. Metamora, 78 lU. 394', Sec. 156, 174. Mortloek vs. Buller, 10 Ves. 292, Sec. 22. Morton vs. Dean, 13 Met. 386, Sec. 29. Moriarity vs. Bagnetto, 110 La. 5981, Sec. 94. Morris vs. Cooper, 36' Kan. 156, Sec. 224. vs. Kniffin, 37' Barb. 336, Sec. 30. vs. State, 47 Tex. 58i3, Sec. 163. vs. Wadsworth, 17' Wend. 103, Sec. 68t Morris Canal & Banking Co. vs. Van Vorst, 21 N. J. L. 100, Sec. 140. Morrison vs. Arons, 65 Minn. 321, Sec. 76, 77, 107. vs. Citizens Nat. Bank, 6i5 N. H. 263, Sec. 96, 115^ vs. Poyntz, 7' Dana (Ky.) 307, See. 269. vs. Taytor, 21 Ala. 779, Sec. 274. ' vs. Yancey, 23 Mo. App. 670, Sec. 214. Morrell vs. Cowan, L. E,., 7 Ch. Div. 191, Sec. 56i. Morse vs. Blanchard, 117 Mich. 37, Sec. 83. vs. Hovey, 9 Paige 197', Sec. 103. vs. Huntington, 40 Vt. 486:, Sec. 86, 92. Morrow vs. U. S. Mortgage Co., 96 Ind. 21, Sec. 260. Moseley vs. Fullerton, 59 Mo. App. 143, Sec. 274, 286. Moss vs. Cohen, 36 N. Y. S. 265, Sec. 138. vs. Pettingill, S Minn. 217, Sec. 98. vs. Riddle, 5 Cranch 36:1, Sec. Ill, 127. vs. State, 10 Mo. 338, S«c. 153. TABLE OF CASES. Ml (References are to sections.) Moses vs. Ranlet, 2 N. H. 486, Sec. 252. vs. United States, 166 U. S. 371, Sec. 176. Mott Iron Works vs. Clark, 69 S. E. 207, See. 66. Moulton vs. Poaten, 92 Wis. 169, Sec. 83, 84. Mound vs. Barker, 71 Vt. 2&3, Sec. 103.. Moye vs. Hemdon, 30 Miss. 110, Sec. 74. Moynahan vs. Hannaford, 42 Mich. 329, Sec. S, 10. Mudd vs. Comm., 14 Ky. L. Rep. 678, Sec. 2i31. vs. Shroader, 152' Ky. 606, Sec. 72. Mudge vs. Vamer, 146 N. C. 147, Sec. 49, 57. Mueller vs. Barge, 5H Minn. 314, Sec. 274. vs. Dobschuetz, 88 IH. 176, Sec. 22, 102. vs. Kelley, 8 Col. App. 527, Sec. 181. Mulcrone vs. American Lumber' Co., 55 Mich. 622, Sec. 39. MuUaly vs. HoWen, 123 Mass. 583, Sec. 45. Mniller vs. Perm, 35 Iowa 420, Sec. 196. Mullen vs. Morris, 43i Neb. 5196, Sec. 127. vs. Whitmore, 7* N. C. 477, Sec. 147. Mulford vs. Estudillo, 23 Cal. 94, Sec. 257. Mulkey vs. Tempteton, 60 S. W. (Tex. Civ. App.) 439, Sec. 26*. Muloare vs. Welch, 160 Mass. 58, Sec. 136, 278. MuUer vs. Rivierre, 59 Tex. 640, See. 39. MuUlkin vs. State, 7 BlaCkf. (Ind.) 77, Sec. 153. Mumford vs. Memphis & C. Ry. Co., 70 Tenn. 393, Sec. 128. Mumper vs. Kelley, 43 Kan. 256, Sec. 142. Munster & Leinater Bank vs. France, 24 L. R. Ir. 82, Sec. 86. Munding vs. Michael, 10 0. C. C. 165, Sec. 213. Munroe vs. Mundy & Scott, 146 N. W. 819, Sec. 30. Municipal Council vs. Peters, 9 Up. Can. (C. P.) 205, See. 110. Municipal Court of Providence vs. Hemry, 11 R. I. 568, Sec. 220. Murray vs. Graham, 29 lowa, 520, Sec. 74. vs. Marshall, 911 N. Y. 611, Sec. 90. vs. O'Brien, 56 Wash. 361, Sec. 244. vs. People, 49 Col: 109, Sec. 2311. Murphy vs. Gage, 21 S. W. (Tex. Civ. App.) 396, Sec. 276. vs. Glass, L. R., 2 P. C. 408, Sec. 117, 258. TS. Hart, 122 App. Div. 548, Sec. 61. vs. Hubble, 2 Duv. (Ky.) 247, Sec. 111. vs. MontandoD, 3 Idaho 325, Sec. 199. vs. Renkert, 5/9 Tenn. 397, Sec. 40. vs. Stell, 43 Tex. 123, Sec. 46. Murphey vs. Gates, 81 Wis. 370, Sec. 42. Murrell vs. Scott, 51 Tex. 520, Sec. 250. Murto vs. McKnight, 28 111. App. 238, Sec. 38. Murdock vs. Brooks, 38 Cal. 596, Sec. 181, 187. Mussey vs. Rayner, 22 Pick; 223, Sec. 50, 59, 66, 68. Musgrave vs. Dickson, 172 Pa. 629, Sec. 245. 592 TABLE OP CASES. (References are to sections.) Museum of Fine Arts vs. American Bonding Co., 211 Mass. 124, Sec. Tfl-b. Mutual Bldg. & Loan Assn. vs. McMullen, 1 Penny. (Pa.) 4S1, Sec. 128. Mutual Life Ins. Co.: vs. Wilcox, 8 Biss. 197, Sec. 129. Mutual Loan & Bldg. Assn. vs. Miles, 16 Fla. 204, Sec. 129. Muzzy vs. Stattuck, 1 Denio (N. Y.) 233, Sec. 167. Myers vs. Bank, 79 111. 257, Sec. 83. vs. Farmers State Bank, 53 Neb. &24, Sec. SO. Myres vs. Yaple, 60 Mich. 33», Sec. 24». Mystic Workers vs. U. S. Fidelity & Guaranty Co., 151 111. App. 223, Sec. 17. N Nally vs. Long, 56 Md. 567, Sec. 253, 260. Nanz vs. Oakley, 120 N. Y. 84, Sec. 223. Nash vs. Fugate, 24 Grat. 2021, Sec. Ill, 127. vs. People, 36 N. Y. 607, Sec. 1619. Nason vs. Poor Directors, 126 Pa. 44S', Sec. 169. National Bank vs. Baker, 58 111. App. 343., Sec 185. vs. Bigler, 83 N. Y. 51, 64, Sec, 118', 255. vs. Gushing, 53 Vt. 321, Sec. 260, 261. vs. Gerke, 68 Md. 449', Sec. 17. vs. Murphy, 125 Iowa 607, Sec. 94. vs. Peck, 127 Mass. 398, Sec. 101. vs. ^onlas, 220 Pa. 360, Sec. 59. National Bank of Commerce, vs. Gam, 23 0. C. C. 447, Sec. 50, 59. vs. Gilvin, 152 S. W. 652, Sec. 113. vs. Rockefeller, 174 F. 2a, See. 56, 581 vs. Schirm, 3 Cal. App. 686, Sec. 26®. National Bank of Gloversville vs. Wells, 7» N. Y. 498, Sec. 11. National Bank of Newburgh vs. Smith, 66 N. Y. 2,71, Sec. 101, 257. National Bank of Peoria vs. Diefendorf, 90 III. 396, Sec. 52. National Eagle Bank vs. Hunt, 16 R. I., 148i See. 71. National Exchange Bank vs. McElfresh, 37' S. E. Rep. (W. Va.) 541, Sec. 51. vs.. Lester, 194 N. Y. 461, Sec. 74. vs. Silliman, 66 N. Y. 476, Sec. 250. National Loan & Bl^. Soc. vs. Lichtenwataer, 100 Pa. 100, Sec. 6®. National Mechanics Banking Assn. vs. Conkling, 90 N. Y. 116, Sec. 2, 76, 132. National Park Bank vs. German, etc., 116 N. Y. 281, Sec. 149. vs. Koehler, 204 N. Y. 174, Sea 86.. National Surety Co. vs. Heimann, 103 N. E. 105, Sec. 225. vs. State Savings Bank, 156 Fed. 21, Sec. 248. Natchitoches vs. Redmond, 28 La. Ann. 274, Sec. 137. Neagle vs. Kelley, 146 111. 460, Sec. 43. Neal vs. Buffirigton, 42 W. Va. 327, Sec. 243, 281. Nebraska, L. & T. Co. vs. Lincoln, etc., R. R. Co., S3 Neb. 246, Sec. 180. Neely vs. Bee, 32 W. Va. 6119, Sec. 253, 274. vs. Rood, 54 Mich. 134, Sec. 248. TABLE OF CASES. 593 (References are to sections.) Neff vs. Homer, 63 Pa. St. 327, Sec 20. Neil vs. Moi^an, 28 HI.. 624, Sec. 20. N«ilson & Churchill vs. Fry, 16 O. S. 562, Sec. 262, 289. Neelsoni vs. Sanborne, 2 N. H. 413, Sec 27. Neininger vs. State, 50 0. S. 304, Sec. 17, 232. Neiser vs. Thomas, 46 Mo. App. 47, Sec 197. Nelson vs. Bostwick, 5 Hill 37, Sec. 68. vs. Boynton, 3 Met. 306, Sec. 41. vs. Donovan, 16 Mont. 83, Sec. 187. vs. First National Bank, 48 111. 36, Sec. 31, 42. vs. Howe Mach. Co., 10 Ky. L. Rep. 37, Sec. 127. Nelson Mfg. Co. vs. Shreve, 94 Mo. App. 518, See. 66. Nesbitt vs. Turner, 155. Pa. 429, Sec. 133. Neivill's Case, 6 Ch. 43, Sec. 102. Nevitt vs. Woodbum, 1*0 IlL 203, Sec. 221. Newark vs. Stout, 5Si N. J. 3i5, Sec. 107. Newark Coal Co. vs. Upson, 40 0. S. 17', Sec 192. Newoomb vs. Gibson, 127 Mass. 396, See. 2831 vs. Hale, 90 N. Y. 336, Sec 113. vs. Kloeblen, 77 N. J. L. 791, Sec 49, 50. vs. Raynor, 21 Wend. 108, Sec. 100. vs. Worster, 7 AUen 198, Sec. 182. Newman vs. King, 54 0. S. 273, Sec 73, 74. Newport Probate Court vs. Hazard, 13 R. I. 3', Sec. 218. Newton vs. Bushong, 22 Gratt. 626, Sec 166. vs. Hammond, 38 O. S. 430, Sec. 225. vs. Lee, 139 N. Y. 332, Sec 117. vs. Pence, 10 Ind. App. 672, Sec. 272. New Bedford Institution for Savings vs. Hathaway, 134 Mass. 69, Sec 252. New Brunswick Land Co. vs. Coubeare, 9 H. L. 711, Sec. 110. New England Co. vs. RandaU, 412: La. Ann. 260, Sec. 90. New Haven vs. National Steam Economizer Co., 79 Coan. 482, Sec. 78> 76'-b. New Haven, etc., Co. vs. Hayden, 119 Mass. 361, Sec. 69. New Haven Lumber Co. vs. Raymond, 76 Iowa 22S, See. 203. New Home Sewing Machine Co. vs. Seago, 128 N. C. 158, Sec. 137!, New J. Midland R. R. Co. vs. Wortendyke, 27 N. J. Eq. 658', Sec 245-. New London Bank vs. Lee, 11 Conn. 112, Sec 285!. New National Turnpike Co. vs. Dulaney, 86 Ky. 916, Sec. 197. New Orleans vs. Clark, 95 U. S. 644, Sec 70. New OrleanB, St. L. & C. Ry. Co. vs. Burke, 53 Miss. 200, Sec. 128. News-Times Pub. Co. vs. Doolittle, 51 Colo. 38©, Sec 6. New York vs. Clark, 82 N. Y. S. 856, Sec. 76. vs. New York Refrigerator Co., 82 Hun. 553i, Sec. 126. N. Y. Life Ins. Co. vs. Casey, 178 N. Y. 381, Sec. 79, 83. vs. Hamlin, 100 Wis. 17, Sec 142. Nllback vs. Champeny, 10 S. D. 166', Sec 83, 594 TABLE OP CASES. (References are to sections.) Nicholas vs. Burch, 128 Ind. 3Zi, Sec. 90. vs. Johnson, 10 Onn. 192, Sec. 29. vs. Madiean, 101 N. Y. 526, Sec. 145. vs. Palmer, 48 Wis. 110, See. 73. Nichols & Shepard Co. vs. Horstad, 27 S. D. 262, Sec. 181. Nicholson vs. Paget, 5 C. & P. 395, Sec. 18, 60. Nightingale vs. Meginnis, 34' N. J. L. 461, See. 83. Nilson vs. Jonesboro, 57 Ark. 168, Sec. 135. Nimocks vs. Welles, 42 Kam'. 39, Sec. 197. Nixon vs. Beard, 111 Ind. 137, Sec. 269, 279. Noble vs. Arnold, 28 0. S. 2l64, Sec. 197. vs. Turner, 6i9 Md. 519, Sec. 2161. Nockles vs. Eggspieller, 47' Iowa 400, See. 203. Nof singer vs. Hartnett, 84 Mo. 549, Sec 189. Noland vs. Wayne, 31 La. Ann. 401, Sec. 287. Noll vs. Smith, 681 Ind. 1881, See. 188'. Nonma vs. Conlan, 68 N,'J. L. 88, Sec. 143. NorcrosB vs. Nunan, 61 Cal. 640, Sec. 172. Nordhaus vs. Petersen, 54 Iowa 68', Sec. 204. Norman vs. Jackson Fertilizer Co., 79 Miss. 747, Sec. 90. Norris vs. Mersereau, 74 Mich. 687, Sec. 176. vs. Pollard, 75 Ga. 368, Sec. 103. Norridgewock vs. Hale, 80 Me. 362, Sec. 153. North vs. La Flesh, 73i' Wis. 520, Sec. 118. Northampton Nat. Bank vs. Wylie, 52 Hun 146, Sec. 208. Northern Bank of Ky. vs. Cooke, 13 Bush (Ky.) 340, Sec. 97: vs. Farmers Nat. Bank, 111 Ky. 350, See. 971. Northern State Bank vs. Bellamy, 19' N. D. 509, See. 6, 9a-a. .North Atchison Bank vs. Ga.y, 114 Mb. 203, Sec. 109. North British Ins. Co. vs. Lloyd, 10 Excq. 523, Sec. 106. North End Sav. Bank vs. Snow, 197' Mass. 33a, Sec. 90. North St. Louis Building & Loan Assn. vs. Obert, 169 Mo. 307, Sec. 12B. Northumberland vs. Oobleigh, 3& N. H. 250, Sec. 122. Northwestern Nat. Bank vs. Kean, 14 Phila. Kep. 7, Sec. 132. Northwestern K. B,. Co. vs. Whinray, 10 Ex. 77, Sec. 132. Northrup vs. Garrett, 17 Hum 497, Sec. 208. Norton vs. Coons, 3 Denio 130, See. 262. vs. Davis, 13 Tex. Civ. App. 90, Sec. 188. vs. Hall, 41 Vt. 47a, Sec. 284. vs. Kumpe, 121 Ala. 446, Sec. 159. vs. Held, 11 S. O. 693, Sec. 261. Norwood vs. Harness, 98' Ind. 134, Sec. 166. Novak vs.: Pitlick, 120 Iowa 286, Sec. 122. Noyes vs. Granger, 51 Iowa 227,, Sec. 17, 125. vs. Humphreys, 11 Gratt. (Va.) 636, Sec. 36, 46. vs. Nichols, 28 Vt. 150, Sec. 50, 66. Nugent vs. Wolfe, 111 Pa. St. 471, Sec. 34. TABLE OF CASES. 595 (References are to sections.) Oak VS. Dustin, 7» Me. 23, Sec. 14. Oakley vs. Weller, 16 Vt. 60, Sec. 65. Oaks vs. VanNoppen, 100 N. C. 287', Sec. 18©. Oberbek vs. Mayer, 59 Mo. App. 280, Sec. 126, 131. Oberne vs. Gaylord, 13 111. App. 30, Sec. 208. OdeH vs. Howie, 77 Va. 361, Sec. 222. Oelrichs vs. Spain, 15 Wall. 2!11, Sec. 19T. Offley vs. Johnson, 2 Leon 16«, Sec. 263. Offord vs. Davie, 12 J. Scott (N.S.) 748, Sec. 71. Offterdinger vs. Ford, 92 Va. 686, See. 203. Ogden vs. Davis, 116 CaL 32, Sec. 181. Ohio vs. Jennings, 4 0. S. 419, Sec. 164. Ohio & Miss. Ey. vs. Hardy, 64 Ind. 454, Sec. 12, Ohmer vs. Boyer, 80 Ala. 273, Sec. 251. Oldham vs. Broom, 28 0. S. 41, Sec. 264. Olean vs. King, 116 N. Y. 365, Sec. 172. Oliphint vs. Mansfield, 36 Ark. 191, Sec. 197. Olmsted vs. Olmsted, 38 Conn. 309, Sec. 17. Olmstead vs. Latimer, 158 N. Y. 313i, Sec. 82. Olsen vs. W. H. Birch & Co., 1 Cal. App. 09, Sec. 182. Omro Supervisors vs. Kaine, 39 Wis. 468, Sec. 166. Opp vs. Ward, 1215 Ind. a4!l. Sec 254. Ord^naJi vs. Lawson, 40 Md. 135, Sec. 62. Ordinary vs. Kershaw, 14 N. J. Eq. 52/7, Sec. 221. Ordinary of New Jersey vs. Thatcher, 12 Vroom 403, Sec. 127. Oregom Ry. & Nav. Co. vs. Swinburne, 22 Ore. 574, Sec. 123, 128i, 135. Orem vs. Wrightson, 51 Md. 34, Sec. 248. Orleans & J. Ry. Co. vs. International Construction Co., 113i La. 409, Sec. 76. Orrick vs. Colston, 7 Gratt. 189, Sec. 10, 129. vs. Durham, 79 Mo. 174, Sec. 23, 261. vs. Vahey, 49 Mo. 428, Sec. 218. Orton vs. Lincoln, 156 111. 499, Sec. 163; O'Brien vs. Murphy, 173 Mass. 258', Sec. 129. O'Connell vs. Mt. Holyoke College, 174 Mass. 511, Sec. 42. O'Conor vs. Braly, 112 Cal. 31, Sec. 96. vs. Decker, 96 Wis. 202, Sec. 166. O'Doniiell vs. Colby, 153 111. 324, Sec. 216. vs. Leeman, 43 Me. 158, Sec. 29. O'Hara vs. Haas, 46 Miss. 374, Sec. 250, 251. CHowell vs. Kirk, 41 Mo. App. 523, Sec. 112. O'Leary vs. Martin, 21 La. Ann. 360, Sec. 8. O'Neal vs. Kelley, 65 Ark. 560, Sec. 76-a. vs. State, 36 Tex. 130, Sec. 229. O'Neil vs. Nelson, 22 lU. App. 531, Sec. 185. 596 TABLE OF CASES. (References are to sections.) O'Neill vs. State Sav. Bank, 34 Mont. 521, See. 256'. vs. Title Guar. & Trust Co., 191 Fed. 570, Sec. 76-b. Osborn vs. Cunndngham, 4/ Dev. & Bat. Law (N. C.) 423, Sec. 279. vs. Hendrickson, 6 Cal. 175, See. 186. vs. Ufw, 40 S. W. 347; Sec. 83. vs. Bobbins, 3© N. Y. 365, Sec. 15, 103. Osborne vs. Baker, 34 Minn. 307, See. 44. vs. Bryoe, 2a Fed. Rep. 171, Sec. 117. vs. Endicott, 6 Cal. 149, Sec. 46. vs. GulMkson, 64 Minn. 218, Sec. 61. vs. Lawson, 26 Mo. App. 549, Sec. 57. vs. Stone, 30 Minn. 25', See. II., Otis vs. Von Storch, 15 E. I. 41, Sec. 96-, 112. Oury.vs. Saunders, 77 Tex. 278', Sec. 259. Overden, Gumey & Co. vs. Orienrtial Financial Corp., L. R., 7' H. L. 348, Sec. 86', 90. Ovington vs* Smith, 78' 111. 2150, Sec. 193. Owen vs. Baker, lOI Mo. 407', Sec. I7S. vs. Homan, 3 Macn. & G. 37®, Sec. 15, 92, 106. vs. Long, 112 Mass. 403i, See. II. vs. McGehee, 61 Ala. 440, Sec. 253i, 269. Owens vs. Miller, 29 Md. 144, Sec. 255. vs. Mynatt, 1 Heisk. (Tenn.) 67S, Sec. 14. Oxford Bank vs. Haynes, 8 Pick. 423, Sec. 67'. vs. Lewis, 8 Pick. 458, Sec. S3. Pace vs. Ficklin, 76 Va. 292, Sec. 181. vs. Mississippi, 2l5 Miss. 54, Sec. 22S'. vs. Pace, 19 Fla. 438, Sec. 218. vs. Pace, 93 Via. 762, Sec. 252, 273.. Pace Grocery Co. vs. Savage, 114 S. W. 866, Sec. 181. Pacific Fire Ins. Co. vs. Paxafie Surety Co., 93 Cal. 7, Sec. 240. Pacific Mail S. S. Co. vs. Leuling, 7 Abb. Pr. (N. S.j 37, Sec. 193. vs. Toel, 85 N". Y. 646. Sec. 193. Pacific National Bank vs. Mixter, ISi U. S. 721, Sec. 202. Packard vs. Brewster, 3& Me. 404, Sec. 148. vs. Richardson, 17 Mass. 122', Sec. 27. Packer vs. Beniton., 36 Conn. 343, Sec. 38'. Paddleford vs. Thacher, 4® Vt. 574, Sec. 102. Page vs. Krekey, 137 N. Y. 307, Sec. 15, 108. Pahlmam vs. Taylor, 75 111. 620, Sec. 73. Pain vs. Packard, 13 Johns. 174, Sec. 116. Paine vs. Voorhees, 26 Wis. 522, Sec. 8&. Palmer vs. Bagg, 56 N. Y. 52®, Sec. 53. vs. Foley, 71 N. Y. 106, Sec. 192, I9a TABLE OF CASES. 597 (References are to sections.) Palmetto Mfg. Co. vs. Parker & Anderson, 123 Ga. 768', Sec. 38. Pannill's Admr. vs. Calloway, 7'8 Va. 367, Sec. 19. Parham va. Green, 6* N. C. 436, Sec. 2691. Pairham Sewing Machine Co. vs. Brock, 113 Mass. 191, Sec. 53L Park Bros. & Co. vs. Sykes, «T Minn. 153, See. 131. Parke vs. White River Co., 110 Cal. 658, Sec. 73. Parker vs. Jeffrey, 26 Ore. 186, Sec. 131. vs. State, 8 Blackf. (Ind.) 282, Sec. 174. Parker & Co. vs. Guillot, 118 La. 22i3, Sec. 82. Parkman vs. Brewster, 15 Gray 271, Sec. 61. vs. Vail, 73 111. 343, Sec. », 10, 16. Parkhurst vs. Van Cortlandt, 1 Johns. Ch. 27'3, See. 29. Parks vs. Ross, 11 How. 360, Sec. 161. vs. Wilson, 10 Mod. SIS), Sec. 135. Parmele vs. Brashear, 161 La. 72, See. 218. Parmelee vs. Thompson, 45' N. Y. 58, Sec. 82. Parshall vs. Lamoreaux, 37 Barb. 18®, Sec. 103. Parr vs. State, 71 Md. 220, Sec. 225. Parnell vs. Hamcock, 48 Cal. 458, Sec. 185. Parrott vs. Kane, 14 Mont. 23, Sec. 190. Partin vs. Prince, 1591 N. C. 633, See. 32. Partridge vs. Davis, 20 Vt. 409, Sec. 51. vs. Jones, 38 0. S. 3n<.% Sec. 20, 121. Pashby vs. Mandigo, 42 Mich. 172, Sec. 270. Passumpsic Bank vs. Goss, 31 Vt. 315, Sec. 111. Paskusz vs. Bodner, 75 N. J. L. 447, See. 60. Patt vs. Gerst, 14fl Ala. 287, Sec. 29. Patterson vs. Freeland, 38 N. J. L. 255, Sec. 153. vs. Gibson, 81 Ga. 802, Sec. 14. vs. McNeely, Ifl 0. S. 348, Sec. 72. Patchin vs. Swift, 21 Vt. 2921, Sec. 27. Patmor vs. Haggard, 78 111. 607, Sec. 27. Patten's Appeal, 45 Pa. St. 151, Sec. 252. Patton vs. Mills, 21 Kan. 163, Sec. 39. Paton vs. Stewart, 78 lU. 481, Sec. 112. Patzack vs. Von Gerichten, 10 Mo. App. 424, Sec. IGS. Paulin vs. Kaigbm, 29 N. J. L. 480, Sec. 2f74. Pauly Jail Bldg. Co. vs. Collins, 138' Wis. 494, Sec. 99. Paul vs. Stackhouse, 3» Pa. 302, Sec. 16, 57. Pavairini & Wyne vs. Title Guar. & Sur. Co., 36 App. D. C. W8, Sec. 281. Pawling vs. United States, 4 Craneh 219, Sec. 109, 127, Paxton vs. State, 59 Neb. 460, Sec. 148, 150, 174. Payno vs. Paehr, 153 CaJ. 441, Sec. 159. vs. Powell, 14 Tex. 600, Sec. 83. Peabody vs. State, 4 O. S. 387, Sec. 166. Peacock vs. The People, 83 111. 331, Sec. 14. Aarl vs. Deacon, 24 Beav. 186, See. 98i, 118. 598 TABLE OP CASES. (References are to sections.) Peake vs. Dorwin Est., 25 Vt. 28, Sec. 56. Pearsell Mfg. C!o. vs. Jeffreys, 183 Mo. SS6, Sec. 66. Pearson vs. State, 7 Tex. App. 279, Sec. 230. Peck vs. Frink, 10 Iowa 193i, Sec. 63i, 67. vs. Harris, 57 Mo. App. 467, Sec. 126. vs. State, 63 Ala. 201, Sec. 228.. vs. Vandemark, 99 N. Y. 29, Sec. 29. vs. Wilson, 212 111. 205, Sec. 213. Peckham vs. Gilman Go., 7' Minn. 446, Sec. 8, 10. Pegram vs. Riley, 8S Ala. 399, Sec. 269. Peiroe vs. Bent, 69 Me. 381, Sec. 117. Pelham vs. Grigg, 4 Ark. 141, Sec. 121. Penn vs. Hamlett, 27 Grat. 337, Sec. 109. vs. Ingles, 8a Va. 615, Sec. 118. Peninell vs. Card, 96 Me. 382, Sec. 137. Pennington vs. Newman, 36 Okl. 594, Sec. 220. Penniman vs. Richardson, 3 La. 101, Sec. 193'. Penny vs. Crane Bros. Mfg. Co., 80 111. 244, Sec. 61, 6T. Penoyer vs. Watson, 16 Johns. 100, See. 52. Pendleton vs. Bank of Kentucky, 1 T. B. Men. 171, Sec 130. Penidlebury vs. Walker, 4 Younge & C. 424, See. 105. Pencinse vs. Burton, 9 Ore. 178, Sec. 181. Pendery vs. Allen, 50 0. S. 121, Sec. 255. Pence vs. Makepeace, 76 Ind. 480, Sec. 217. People vs. Admire, 39 IH. 251, Sec. 220. vs. Backus, 117 N. Y. 196, Sec. 5. vs. Borders, 31 111. App. 42©, Sec. 225. vs. Bostwick, 32' N. Y. 446, Sec. 74, 109. vs. Bowman, 147 111. App. 67, Sec. 156. vs. Brooks, 22 lU. App. 594, Sec. 225. vs. Brown, 2 Doug. (Mich.) 9, Sec. 151. vs. Bush, 40 Cal. 344, Sec. 168. vs. Buster, 11 Cal. ai5i. Sec. 114. vs. Chalmers, 60 N. Y. 154, Sec. 227. vs. Chisholm, 8 Cal. 29, Sec. 114. vs. Cobb, 10 Ool. App. 478; Sec. 163. vs. Dennis, 4 Mich. 609i, Sec 23il. vs. Fidelity & ^Casualty Co., 153 111. 25^ Sec. 2331 vs. GiUman, 125 N. Y. 372, Sec. 231 vs. Grant, 138 Mich. 60, Sec. 85. vs. Hanaw, 106 Mich. 4211, Sec. 229. vs. Hartley, 21 Cal. 585, Sec. 149. vs. Healy, 128 111. 9', Sec. 110. vs. Hilton, 36 Fed. Rep. 1721, Sec. 163. vs. Holley, 12 Wend. 481, Sec. 150. vs. Huson, 78 Cal. 154, Sec. 19', 148l vs. Knickerbocker, 114 111. 539, Sec. 180. TABLE OP CASES. '599 (References are to sections.) People VS. Lee, 104 N. Y. 441, Sec. 55. vs. Love, 19 Cal. 6(7®, Sec. 146. vs. Lucas, 93 N. Y. 5BS, Sec. 182. vs. McHattoiii 2 Gilm. (111.) 63», Sea 87. vs. McEeynolds,- 102 Cal. 308, Sec. 232. vs. May, 158 111. App. 586, Sec. 150. vs. Meacham, 74 111. 292, Sec. 231, 245: vs. Metropolitan Surety Co., 132 N. Y. S. 829, Sec. 256. vs. Meyer, 20 N. Y. Supp. 1148, Sec. 232. vs. Moore, 4 N. Y. Cr. Rep. 205', Sec. 232. vs. Paolfio Surety Co., 130 111. App. 502i, Sec 223. vs. Perkins, 85 Cal. 509, Sec. 150. vs. Petrie, 191 111. 497, See. 218. vs. Eardin, 171 IH. App. 22©, Sec. 222. vs. Rathbone, 145 N. Y. 434, Sec. 145i. vs. Remington & Sons, 121 N. Y. 328, Sec. 252. vs. Robb, 981 Mich. 397, Sec. 232. vs. Rose, 174 111. 310, Sec. 233. vs. Rubright, 160 111. App. 528, Sec. 231. vs. Russell, 26 Hun 524, See. 17S. vs. Schuyler, 4 N. Y. 173, Sec. 164, 165, 248. vs. Seelye, 146 111. 189, Sec. 226'. vs. Sharp, 133 Mich. 37S, Sec. 23i-a. vs. Smith, 123 Cal. 70, Sec. 159. vs. Stephens, 71 N. Y. 527, Sec. 161. vs. Vilas, 36 N. Y. 45», Sec. 152. vs. Warren, 5 Hill. (N. Y.) 440, Sec. 172. vs. Welch, 47 How. Pr. 420. vs. White, 28 Hun 280, Sec. 227. vs. Zingraf, 43 111. App. 337, Sec. 175, Sec. 229. People, ex rel., Kasson vs. Rose, 174 111. 310, Sec. 233. Peoples Bank vs. Legrand, 103 Pa. 309, Sec. 101. vs. National Bank, 101 U. S. 181, Sec. 11. vs. Pearsons, 30 Vt. 711, Sec. 83. vs. Stewart, 152. Mo. App. 3;14, Sec. 67. Peoples Bamk of Greensboro vs. Steinhart, 65 So. 60, Sec. 11. Peoples Bldg. & Loan Ass. vs. Wroth, 43 N. J. L. 70, Sec; 12», 13i5i Peoples Savings Bank vs. Compau, 124 Mich. 106, Sec. 137. Peoples State Bank vs. Miller, 8& Kas. 272, See. 293. People of Porto Rico vs. Title Guaranty & Sur. Co., 227' U. S. 382, Sec. 103. Peoria Savii^s Co. vs. Elder, W5 111. 55, Sec. 50. Peppin vs. Cooper, 2 Bam. & Aid. 431, Sec. 153. Perkins vs. Oatlin, 11 Conn. 213, Sec. 8, 63. vs. Klein, 62 111. App. 586i Sec. 186i. vs. Shadbolt, 44 Wis. 574, Sec. 181. Perkins, Admr., vs. Barstow, 6 R. I. 505!, Sec. 8, 10. Perkins Co. vs. Miller, 3Br Neb. 14-1, Sec. 146. 600 TABLE OP CASES. (References are to sections.) P^rlman vs. Bernstein, 93 App. Div. 336, Sec. 197. Perley vs. Muskegon Co., 3B Mich. 132, Sec. 166. Perrine vs. Firemcm's Ins. Co., 22 Ala. 575, See. 101. Peterson vs. Russell, 62 Minn. 220, Sec. o'T. Peters vs. Suavely- Ashton, 144 Iowa 147, Sec. 208. Petty vs. Cooke, L. R., Q. B. 790, Sec. 97. vs. Douglass, 76 Mo. 70, See. 115. vs. Lang, 81 Tex. 288i, Sec. 203. vs. People, 118 111. 148., Sec. 230. Pettee vs. Peppard, 120 Mass. 522, Sec. 142. Pettit vs. Mercer, 8 B. Mon. (Ky.) 51, Sec. 200, 203, 208. Petillon vs. Noble, 73i 111. 567, See. 255. Pfaelzer vs. Kau, 207 III. 116, Sec. 67, 68. Pfeiffer vs. Kingsland, 215 Mo. 6©, Sec. !&. Phares vs. Barbour, 49 111. 370, Sec. 99. Phelps vs. Call, 7 Ired. (N. C.) 262, Sec. 1211. vs. Stone, 172' Mass. S5I5, Sec. 36. vs. Vischer, 50 N. Y. m, Sec. 8', 10. Phelan vs. Johnson, 80 Iowa 727, Sec. 187. Philadelphia vs. Fidelity & Dep. Co., 281 Pa. 208, Sec. Sil. vs. Madden, 23' Pa. Co. Ct. Rep. 39, Sec. 131. vs. Stewart, 201 Pa. 526, Sec. 7'6-a. Philadelphia & R. R. Co. vs. Knight, 124 Pa. St. 58, Sec. 11. Philadelphia & E,eading Ry vs. Little, 41 N. J. Eq. 519, Sec 115. Philbrooks vs. McEwen, 29 Ind. 3147, Sec. 99. Phillimore vs. Barry, 1 Camp. 513, Sec. 30. Phillips vs. BoBsard, 35 Fed. Rep. 99, See. 107. vs. Foxall, L. R., 7 Q. B. 66©, See. 107. vs. Poole, 96 Ga. 915, Sec 143. vs. Ross, 36 0. S. 458, Sec. 227. vs. Rounds, 33 Me. SiST, Sec. 91. vs. Singer Mfg. Co., 88 111. SOS, Sec. 143. vs. Solomon, 42 Ga. 192, Sec. 100. vs. State, 100 Ark. 515, Sec. 282. Phipsburg vs. Dickinson, 78i Me. 457, Sec. 156. Phoenix Ins. Co. vs. Finley, 58i Iowa 591, Sec. 107, 134. Phoenix Mfg. Co. vs. Bogardus, 231 111. 52S, Sec. 17. Phoenix Pad Co. vs. American Coat Co., Ill Md. 549, Sec. 196. Picket vs. Hawes, 14 Iowa 460, Sec. 67. Pickett vs. Andrews, 135 Ga. 299, Sec. 117. vs. State, 16 Tex. App. 64Si, Sec. 229. Pickens vs. Miller, 83 N. C. 543, Sec. 219. vs. Yarborough, 26 Ala. 417, See. 115. Pico vs. Webster, 14 Cal. 202, Sec 176i. Pidcock vs. Bishop, 3 Barn. & Cr. 605, Sec. 15, 105. Pierce vs. Banta, 9 Ind. App. 376, Sec. 190. vs. Hardee, 1 Thomp. & Cook (N. Y.) 567, Sec. 212. TABLE OP CASES. 601 (References are to sections.) Pierce rs. Holder, 65 Mich. 263, Sec. 248. vs. King, 14 R. I. 611, Sec. 212. vs. Knight, 31 Vt. 701, Sec. 96. vs. Richardson, SI N. H. 306, Sec. 148. vs. Whiting, 63.CaI. 5S8., Sec. 205. vs. Williams, 23 L. J. Ex. 322, Sec. 283. Piercy vs. Piercy, 36 N. C. 214, Sec. 190. Pierson vs. Catlin, 18.' Vt. 77, Sec. 264. vs. Ells, 46 Hun 336, Sec. 193. Pike vs. Megoun, 44 Mo. 491, Sec. 169. Pile vs. McCoy, 9ft Tenn. 367, Sec. 268. Pill vs. State, 43 Neb. 23, Sec. 230. Pine Co. vs. Willard, 39 Minn. 125, Sec. 156. Pinkstaflf vs. The People, 59 111. 148, Sec. 218. Pioneer Co. vs. Freeburg, 58 Minn. 230, Sec. 77. Piper vs. Peajson, 2 Gray 120, See. 168. Pittman vs. Chisolm, 43 Ga. 442, Sec. 62. Pittsbui^, etc., Ry. Co. vs. Shaeffer, 59 Pa. 350, Sec. 107. Place vs. Taylor, 22 0. S. 317, Sec. 164, 16». Plankintou vs. Gorman, 93 Wis. 560, Sec. 98'. Piano Mfg. Co. vs. Burrows, 40 Kam. 361, Sec. 142'. vs. Parmenter, 41 111. App. 635, Sec. 102. Planters Bank vs. Hudgins, 84 fia. 108, Sec. 186. Planters Loan & Savings Bank vs. Berry, 91 Ga. 264, Sec. 202. Platter vs. Green, 26 Kan. 2.52, Sec. 66. Pleasantville Loan Soc. vs. Moore, 70 N. J. L. 306, See. 61, 67'. Pledge vs. Buss, Johnson, 663, Sec. 98. Plumb vs. Woodmansee, 34 Iowa 116, Sec. 208'. Plummer, et al., vs. The People, 16 111. 358, See. 15. Plunkett vs. Sewing Machine Co., 84 Md. 529, Sec. 73. Poignard vs. Vemoui 1 T. B. Mon. (Ky.) 45, Sec. 219'. Polak vs. Everett, 1 Q. B. Div. &I6, Sec. 79', 98. Pollock vs. Gantt, 6» Ala. 37®, Sec. 204. Polhill vs. Brown, 84 Ga. 36S, Sec. 280. Polkinghorne vs. Hendricks, 61 Miss. 386, See. 89. Pond vs. Dougherty, 92 Pac. 103S, Sec. 248. vs. United States, 111 Fed. 989, Sec. 71. Pool vs. Itosteir, 59' Miss. 25», Sec. 26i5. Poole vs. Cox, 9 Ired. L. (N. C.) 69, Sec. 158. vs. Rice, 9' W. Va. 73, Sec. 85. Poolcy vs. Harradine, 7 El. & Bl. 431, Sec. 90. Port vs. Robbins, 35 Iowa 208i, Sec. 112. 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. 1815. vs. Vanderlin, 146 Pa. 138, Sec. 244. vs. Wormser, 94 N. Y. 431, Sec. 46. 602 TABHE OF CASES. (References are to sections.) Post vs. DoremuB, 60 N. Y. 371, Sec. 182. Post, Admr., vs. Losey, 111 Ind. 74, Sec. 79, 100. Postmaster GemT vs. Norvell, Gilp. 106, Sec. 148. Pott vs. Nathans, 1 Watts & Serg.,(Pa.) 169, Sec. 263, Pott & Co. vs. Schmucker, 84 Md. 535, Sec. 76. Potter vs. Gronbeck, 117 111. 404,. Sec. 71. vs. Ogden, 136 N. Y. 384, Sec. 223. vs. Stevens, 40 Mo. 229', Sec. 2SS. vs. State, 23 Ind. 560, Sec. 20. Potvin vs. Meyers, 27 Neb. 749, Sec. 247, 249. PouUain vs. Brown, 80 Ga. 27, Sec. 144. PoweU vs. Bradley, 9 Gill. & Johns. (Md.) 220, Sec. 110. vs. Chlcag'o Carpet Co., 22 111. App. 409, Sec. 6a. vs. Jones, 1 Ired. Eq. N. C. 337, Sec. 248. vs. KetteEte, 6i 111. 4!9il, See. 119. vs. Powell, 4S> Cal. 234, Sec. 144, 219, 263. vs. Smith, 8 Johns. 249, Sec. 2S3. Power vs. Burmester, 34' N. Y. S. 716, Sec. 2231. vs. Kankin, 114 III. 52, Sec. 40. Powers vs. Bumoratz, 12 O. S. 27'3, Sec. 66. vs. Chabot, 93 Cal. 266, Sec. 182. Vs. Loughridge, 38 N. J. Eq. 396, Sec. 166. Powers Dry Goods Co. vs. Harlin, 68 Minn. 193, Sec. 109. Powles vs. Hargreaves, 3 DeG., M. & G. 430, Sec. 256. Pratt vs. Conway, 148 Mo. 28a, Sec. 90. vs. Hedden, 121 Mass. 116, Sec. 9, 16^ vs. Thornton, 28 Me. 366, Sec. 256. Prairie State Bank vs. United States, 164 U. S. 227i Sec. 248L Pray vs. Wasdell, 146 Mass. 32(4, Sec. 181, 183. Prescott vs. Brinsley, 6 Cush. 28®, Sec. 78. vs. Hull, 23 Gratt. 600, Sec. 109, 121. Prescott National Bank vs. Head, 11 Ariz. 213, Sec. 76-a. Preston vs. Garrard, 120 Ga. 680, Sec. 90. vs. Gould, 64! Iowa 44, Sec. 2fr8. Pressed Radiator Co. vs. Hughes, 155 111. App. 80, Sec 661 Prefontaine vs. Richards, 4ff Hun 418, Sec. 183. Price vs. Barker, 4 El. & Bl. 760, Sec. 92, 102; 114. vs. Barnes, 7 Ind. App. 1, Sec. 150, 225. vs. Courtney, 87 Mo. 387, Sec. 250. vs. Dime Savings Bank, 124 111. 317, Sec. 81. vs. Easton, 4 Bam. & Ad. 433, Sec. 142. vs. Horton, 4 Tex. Civ. App. 526, Sec. 28? vs. Lavender, 38 Al'a. 389, Sec. 8, 10. vs. Sanders, 60 Ind. 310, Sec. 250. vs. Scott, 13 Wash. 574, Sec. 134. vs. Trusdell, 28 N. J. Eq. 200, Sec. 256. Prime vs. Koehler, 77 N. Y. 91, Sec. 3a TABLE OP CASES. 603 (References are to sections.) Prior vs. Kiso, 81 Mo. 241, Sec. 73. Pritchard vs. Hitchcock, 6 Man. & G. 151, Sec. 97. Prince vs. Skilliu, 71 Me. 361, Sec. 14& Prickett vs. People, 88 111. US, Sec. 152. Probate Court vs. Brainard, 48 Vt. 620, Sec. 219. vs. Kent, 49 Vt. 380, Sec. 220. vs. Williams, 30 R. I. 144, Sec. 218. Probate Judge vs. Mathes, 60 N. H. 438, Sec. 217. Proctor vs. Dicklow, 57 Kan. 119, See. 221. Proseek vs. State, 38 O. S. 606, Sec. 229. Prout vs. Webb, 87 Ala. 5»3, Sec. 41. ticvidence Machine Co. vs. Browning, 68 S. C. 1, Sec. 61, 67. Prussing vs. Lancaster, 234 111. 4)62, Sec. 83. PuUiam & Payne vs. Withers, 8 Dana (Ky.) 98, Sec. 16. Punta Grorda Bank vs. State Bank, 52 Pla. S9&, Sec. 49. Pundmann vs. Schoenich, 144 Mo. 149', Sec. 174. PursifuU vs. Pineville Banking Co., 97 Ky. 154, Sec. lOli Purviance vs. Sutheriand, 2 0. S. 47'8, Sec. 279. Putnam vs. Schuyler, 4 Hun (N. Y.) 166, Sec. 15, 103. Putney vs. Farnham, 27 Wis. 187, Sec. 40, 43. vs. Schmidt, 16 N. M. 400, Sec. 15, 106. Pybus vs. Gibb, 6 El. & Bl. 902, Sec. 87, 15®. Pynes vs. State, 45 Ala. 52, Sec. 232. Queal & Co. vs. Peterson, 138' Iowa 514, Sec. 5T. vs. Stradley, 117 Iowa 748, Sec. 76-b. Quillen vs. Qu:^ley, 14 Nev. 215, Sec. 115, 186. Quinlan vs. Insurance Co., 133 N. Y. 35'6, Sec. 241. Quinn vs. Hard, 43 Vt. 375, Sec. 108'. K Raabe vs. Squier, 148 N. Y. 81, Sec. 39. Rabbermani vs. Wiskamp, 54 111. 17'9, Sec. 43. Babbitt vs. Finn, 101 U. S. 7, Sec. 187. Eachelman vs. Skinner, 46 Minn. 196, Sec. 203. Railton vs. Mathews, 10 C!. & Fin. 934, Sec. 15, 106, 127. Railroad Co. vs. Trimble, 10 Wall. 367, Sec. 49. Railsbaek vs. Greve, 58 Ind. 72, See. 183. Rainbow vs. Juggins, 5 Q. B. Div. 422, Sec. 98. Raikes vs. Todd, 8 Ad.. & Ell. 846, Sec. 26. Ralston vs. Wood, 15 111. 159, Sec. 217. Ramey vs. Commonwealth, 83 Ky. 534, Sec. 229, 230, 272. 604 TABLE OP CASES. (References are to sections.) Ramsay's Estate vs. People, 198 111. 572, Sec. 14S, 166. vs. Whitbeck, 183 111. 550, Sec. 2/79. Rand vs. Barrett, 66 Iowa 7?1, Sec. 244. Randall vs. Carpenter, 88 N. Y. 293, Sec. 197. vs. Howard, 2 Black. (U. S.) 585, Sec. 46. Randol vs. Tatum, 08 Cal. 390, Sec. 96. Rankin vs. CoUims, 50 Ind. 15«, Sec. 269. vs. Tygard, 198 Fed. 785, Sec. 72, 129. Rapelye vs. Bailey, 3 Conn. 438, Sec. 66. Rapp vs. Phoenix Co., 113 111. 390, See. 107, 119. RatliflF vs. Trout, 6 J. J. Marsh. 605, Sec. 27. Raubitschek vs. Blank, 80 N. Y. 478, Sec. 28. Rawleigh Medical Co. vs, Tarpley, 5 Ala. App. 412, Sec. 0. vs. Wilson, 7 Ala. App. 242, Sec. 15, 198, 10ft. Bawlii^s vs. Adams, 7 Md. 26, Sec. 135. Rawson vs. Taylor, 30 O. S. 389, Sec. 23, 90. Raymond vs. Green, 12 Keb. 215, Sec. 208. Bead vs. Cutts, 7 Greenl. 186, Sec. 67. vs. McLemorej 34 Miss. 110, Sec. 111. Reader vs. Kingham, 13 C. B. N. S. 344, See. 32. Ream vs. Lynch, 7 111. App. 161, Sec. 226. Realization Co. vs. Ameo-ican Bonding Co., 88 O. S. 216, Sec. 259, Redwood Co. vs. Tower, 28 Minn. 45, Sec. 167. Redlom vs. Heath, 59 Kas. 259, Sec. 99. Red River Nat. Bank vs. Bray, 105 Tex. 312, Sec. 82. Red Wing Sewer Pipe Co. vs. Donnelly, 102 Minn. 192, Sec. 19, 1311 Reeoe vs. Northway, 58 Iowa 18T, Sec. 197. Reed vs. Evans, IT O. 128, Sec. 27. vs. MiJCwirt, 41 2Sr. Y. 435» Sec. 134. vs. Norris, 2 Mylne & Graig 3«'l, Sec. 28a Rees vs. Berrington, 2 Ves. 540, Sec. 81. Reese vs. People, 11 111. App. 346, See. 231. vs. United States, 9 Wall. 13; Sec. 7», 91, 229. Reeves vs. Chambers, 67 Iowa 81, Sec. 117. Regan vs. Williams, 189 Mo. 620, Sec. 90. R^inia vs. Lane, 2 Ld. Raym. 1304, Sec. 145. Beid vs. Plippen, 47 Ga. 273-, See. 284. Beissaus vs. Whites, 1218 Mo. App. 136, Sec. 76-a. Reinhart vs. Johnson, 62 Iowa 155, Sec. 253^ Beinheimer vs. Carter, 31 0. S. 579, Sec. 45. Beissner vs. Oxley, 80 Ind. 580, Sec. 49. Beisenleiter vs. Lutherische Kirche, 29 Mo. App. 291, Se& ^ Beilly vs. Dodge, 131 N. Y. 153, Sec. 71. Beichenibach vs. Sage, 13 Wash. 3164, Sec. 135. Bemingtom S. M. Co. vs. Kezertee, 49 Wis. 409, Sec. 15, 106^ laT. Remsen vs. Beekman, 26 N. Y. 562, See. im Beidsert vs. Elliott, 78 Tenm. 235, Sec. 143, 200. TABLE OF CASES. 605 (References are to sections.) Renfroe vs. Colquitt, 74 Ga. 618, Sec. 160. Itepair vs. KrSbs Lumber Ca., 80 S. E. 140, Sec. 36. Eesseter vs. Waterman, 151 111. 169', Sec. 34. Beusch vs. Keenan, 42 La. Ann. 419', Sec. 115. Eeuss vs. Picksley, L. R., 1 Ex. 342, Sec. 28. Eevell vs. Smith, 25 Okl. 508, Sec. IffT. vs. Thrash, 13r2 N. C. 803, Sec. 81,-83. Key, et al., vs. Simpson, 22 Howard 341, Sec. 8, 112. Reynold vs. White, 118 N. Y. S. QT®, Sec. 1851. Reynolds vs. Douglass, 12 Pet. 497, Sec. 65. vs. Edney, 53 N. C. 406, Sec. 67. vs. Harral, 2 Strob. (S. C.) 87, Sec. 279. vs. Hennessy, 17' R. I. 169, Sec. 141. vs. Ward, 5 Wend. 501, Sec. 83: Rhea vs. Gibson's Exr., 10 Gratt. 215, Sec. 20, IDS'. Rheeling's Appeal, 107 Pa. 161, Sec. 259. Rhode vs. McLean, 101 111. 467, Sec. 23-a, 109. Rhodes vs. Matthews, 67 Ind. 131, Sec. 39. Rice vs. Cook, 92 Cal. 144, Sec. 196. vs. Downing, 12 B. Mon. (Ky.) 44, Sec. 245^ 280. vs. Hardwick, 124 Pac. 800, Sec. 3&. vs. McCague, 61 Neb. 861, Sec. 49. vs. Morris, 82 Ind. 204, Sec. 260. vs. Morton, 19 Mo. 263, Sec. 114. vs. Rice, 13 Ind. 562, Sec. 185. vs. Rice, 108 111. 199, Sec. 248: vs. Rice, 14 B. Mon. (Ky.) 336, Sec. 286. vs. Southgate, 16 Gray 142, Sec. 280. Richards vs. Day, 137 N. Y. 188, Sec. 124. vs. Market Ex. Bank, 81 0. S. 348, Sec. Sl-a. vs. Osceola Bank, 791 Iowa 707, Sec. 115. vs. Storer, 114 Mass. 101, Sec. 202, 206. vs. The Commonwealth, 40 Pa. 146, Sec. 93. Richardson vs. Boynton, 12 Allen 138, Sec. 2^24. vs. Draper, 87 N. Y. 33i7, Sec. 119. vs. Gilbert, 135. 111. App. 363, Sec. 214: vs. Robbins, 124 Mass. 105v Sec. 41. vs. Williams, 491 Me. S5&, See. 40. Richardson School Fund vs. Dean, 130 Mass. 242, Sec. S Richeson vs. Crawford, 94 111. 1«5, See. 248. Richie vs. Philadelphia, 225 Pa. 511, Sec. 145. Richmond Co. Supv. vs. Wandel, 6 Lans. 33, Sec. 160. Rieketson vs. Compton, 23' Cal. 636, Sec. 180. Riddle vs. McFadden, 112 N. Y. S. 498, Sec. 181. Ridgway vs. Ingram, 50 Ind. 145, Sec. 29. Ridgely vs. Bennett, 81 Tenn. 206, Sec. 180. Riddlesbarger vs. Insurance Co., 7 Wall. 366, Sec. 241. 606 TABLE OF CASES. (References are to sections.) Riggin vs. Creath, CO O. S. 114, Sec. 102, 222. Riggs vs. Bell, 42 La. Ann. 666, See. 197. vs. Waldo, 2 Cal. 485, Sec. 10. Riley vs. Mitchell, 38 Minn. 9, Sec. 181. vs. Walker, 42 W. L. B. 275, Sec. 164. Rindge vs. Judson, 24 N. Y. 64, Sec. 18, 60. Ring vs. Kelly, 10 Mo. jipp. 411, Sec. 126. Ringgold vs. Newkirk, 3 Ark. 96, Sec. 67. Rindskopf vs. Doman, 28 0. S. 516, Sec. 94. Ripley vs. Gear, 58 Iowa 460, Sec. 199. Ripley Bldg. Co. vs. Coors, 37 Col. 78, Sec. 108. Riscber vs. Meehan, 11 0. C. C. 403, Sec. 164. Rialey vs. Brown, 67 N. Y. 160, See. 69, 119. Rittenhouse vs. Levering, 6 Watts. & Serg. (Pa.) 190, Sec. 261. Ritter vs. Singn^aster, 73 Pa. 400, Sec. 97. Rizer vs. Callen, 27 Kan. 339, Sec. 2S2. Roach vs. Gardner, 9 Gratt. 89, Sec. 193. Roberts vs. Donovan, 70 Cal. 108, Sec. 107. vs. Hawkins, 70 Mich. 566, Sec. 61, 67. vs. Richardson, 39 Iowa 290, Sec. 81. vs. Eiddle, 79 Pa. 408, Sec. 61, 67. vs. State, 22 Tex. App. 64, Sec. 232. vs. State, 34 Kau. 151, Sec. 21. vs. Stewart, 31 Miss. 664, Sec. 82. Robertson vs. Angle, 76 S. W. 3a7, Sec. 115. vs. Mndley, 31 Mo. 384, Sec. 1ft, 57. vs. Parks, 76 Md. 118, Sec. 110. vs. Sichel, 127 U. S. 507, See. 170. vs. Smith, 129- Ind. 4122, Sec. 195. Robeson vs. Roberts, 20 Ind. 155, Sec. 9i9, 257. Robbins vs. Ayres, 10 Mo. 6i38, 539, Sec. 43, 142, vs. Bingham, 4 Johns. 476, Sec. 52. Roibinson vs. Abell, 17 0'. 36, Sec. 9. vs. Bartlett, 11 Minn. 410, See. 8. vs. Boyd, 60 0. S. 57, Sec. 2162. vs. Brinson, 20 Tex. 438, Sec. 181. vs. Brown, 82 111. 279', Sec. 187. vs. Dale, 38 Wis. 380, See. 8^, 83. vs. Garth,: 6 Ala. 204, Sec. 22. vs. Godfrey, 2 Mich. 408, Sec. 93. vs. Gould, 11 Cush. 55, Sec. 14. vs. Hall, 33 Kan. 139, Sec. 147. vs. Hodge, 117 Mass. 222, Sec. 217. vs. Plimpton, 25 N. Y. 484, Sec. 189. vs. Reed, 46 Iowa 219, Sec. 10. vs. Soule, 56 Miss. 549, Sec. 100. vs. Sullivan, 102 Miss. 581, Sec. 244. vs. Teeter, 10 Ind. App, 699, Sec. 215. TABLE OF CASES. 607 (References are to sections.) Robinson's Case, 131 Mass. 376, Sec. 145. Eocoo vs. Cicalla, 50 Teim'. 508, See. 214. Eockfield vs. First National Bank, 77 0. S. 311, Sec. 9l Eockville Bank vs. Holt, 5fe Conn. 526, Sec. 94, 102. Eochester City Bank vs. Elwood, 21 N. Y. 88, Sec. 130. Eodgers vs. Maw, 15 M. & W. 444, Sec. 282. Eodini vs. Lytle, 17 Mont. 448, Sec. 175. Eodman vs. Moody, 14 Ky. L. Eep. 203, Sec. 184. Eoe vs. Kis«r, 62 Ark. 92; Sec. 284. ^ Eogers vs. Harvey, 143 Ky. 88, Sec. 51. vs. Minneapolis Threshing Machine Co., 48 Wash. 19, Sec. 188. vs. School Trustees, 46 lU. 428, Sec. 112. vs. Shaw, 59 Cal. 2160, Sec. 133. vs. State, 99 Ind. 218, Sec. 156. Eomadka Bros. Co., Ee, 216 Fed. 113, Sec. 11. Eomine vs. Eomine, 59 Ind. 3i46, Sec. 282. Eonehel vs. Lofquist, 46 111. App. 442, Sec. IIT. Eoosevelt vs. Mark, 6 Johns. Ch. 266, Sec. 279. Boot vs. Caldwell, 54 Iowa 432i, Sec. 174. Eoper vs. Sangamon Lodge No. 6, 91 111. 518, Sec. 15. Eose vs. Douglass Tp., 52 Kan. 451, Sec. 109, 124, 151, 166. vs. Williams, 5 Kan. 483, Sec. 83. vs. Wollenberg, 31 Ore. 269, Sec. 34, 265. Eosenbaum vs. Groodman, 781 Va. 121, Sec. 254, 263. Rosenthal vs. Davenport, 38 Minn. 543, Sec. 1S9. Eoss vs. Ferris, 18 Hun 210, Sec. 186. vs. Menefee, 125 Ind. 482, Sec. 280. va. Williamson, 44 Ga. 501, Sec. 150. vs. Wilson, 7 S. & M. (Miss.) 753, Sec. 256i. Roth vs. Harkson, 18 La. Ann. 705, Sec. 239. Rotherham Alum & Chem. Cot, In re, L. R., 25 Ch. Div. 103, Sec. 142. Rottman vs. Fix, 25 Mo. App. 571, Sec. 37. Rouse vs. Bradford Banking Co., L. R., 2 Ch. (1894) 32, Sec. 90. vs. Mohr, 29 III. App. 321, Sec. 16. Eouss vs. Creglow, 103 Iowa 60, Sec. 48. Eowan vs. Sharp's Rifle Mfg. Co., 33 Conn. 1, Sec. 73. Rowland vs. Mayor, 83 N. Y. 372, Sec. 145. Rowley vs. Howard, 23 Cal. 401, See. 147. vs. Jewett, 56 Iowa 492, Sec. 133. Rowell Mfg. Co. vs. Isaacs, 144 Mo. App. 58, Sec. 66. Royal Bank vs. Commercial Bank, L. R., 7 App. Cases 366, Sec. 256 Royal Co. vs. Davies, 40 Iowa 469, Sec. 119. Rubey Trust Co. vs. Weidner, 174 Mo. App. 692, Sec. 36. Eubush vs. State, 1121 Ind. 107, Sec. 229. Eucker vs. Eobinson, 38 Mo. 154, Sec. 92. Eucks vs. Taylor, 49 Miss. 552, Sec. 261. Eudesill vs. County Court of Jeflferson Co., 8© 111. 446, See. 151. 608 TABLE OP CASBB. (References are to sections.) Rudolph vs. Malone, 104 Wis. 470, Sec. 23-a, 263. Rudy vs. Rudy, 14S Ky. 24Si, See. 224. vs. Wolf, 16 Serg. & R. 79, Sec. 6, fll. RufSn vs. Harrison, »1 N. C. 20&, Sec. 222. Ruffnier vs. Love, 33 111. App. 601, Sec. 6©. Ruggles vs. Gattom, 50 111. 412, See. 36. vs. Holden, 3 Wend. 216, Sec. 116. Rule vs. Anderson, 160 Mo. App. 347, Sec. 76-a. Rupert vs. People, 20 Colo. 42*, Sec. 228. Russell vs. AnnaWe, 109 Mas.s. 72, Sec. 104. vs. Ballard, 16 B. Mon. (Ky.) 201, Sec. 78. vs. Clark, 7 Oranch 6©, Sec. 1», 50, 5», 65. vs. Failor, 1 O. S. 327, Sec. 103, 262, 275. vs. Farley, 105 U. S. 443, See. 179. vs. Freer, 56 N. Y. 67, Sec. 109, 127. Rutenberg vs. Main, 47 Cal. 2113, Sec. 30. Rutland vs. Paige, 24 Vt. ISi, Sec. 146. Rutherford vs. Moore, 2!4 Ind. 311, Sec. 198. Rutter vs. Hall, 31 lU. App. 647, Sec. 222i. Ryan vs. Krusor, 76 Mo. App. 496, Sec. 260. vs. Morton, 65 Tex. 2I5«, See. 7'9. vs. Shawneetown', 14 111. 20, Sec. 77. vs. Tomlinson, 39 Cal. 639, See. 25'. Ryndak vs. Seawell, 23 Okl. 768, Sec. 181, 183. Sabiu vs. Harris, 12 Iowa 87, Sec. 67. Sabo vs. Nimett, 178 111. App. 459, Sec. 43. Sabri-nos vs. Chamberlain, 76 Tex. 624, Sec. 221. Sacra vs. Hudson, 59 Tex. 207, Sec. 121. Sacramento Co. vs. Bird, 31 Cal. 66, Sec. 114, 152. Sacramento Lumber Co. vs. Wagner, 67 Cal. 29®, Sec. 43. Sachs vs. American Sur. Co., 72 App. Div. 60, Sec. 137. Sadler vs. Hawkes, 1 Rolle 4br. 27, PI. 49, Sec. 57. SaflFold vs. Wade, 51 Ala. 214, Sec. 255'. Sage vs. Wilcox, 6 Conn. 81, Sec. 27. Saginaw Medicine Co. vs. Batey, 17® Mich. 66a, Sec. 15, IDS. Saint vs. Wheeler, 95 Ala. 362, Sec. 107. Saline County vs. Buie, 65 Mo. 93, Sec. 98. Salisbury vs. First Nat. Bank, 37 Neb. 872; Sec. 10. vs. Keigher, 47 Minn. 367, Sec. 131. Salmon vs. Clagett, 3 Blaaid's Ch. (Md.) 1215, Sec. 92. Salmon Falls Bank vs. Leyser, 116 Mo. 51, Sec. 28il. Salmon Falls Mfg. Co. vs. Goddard, 14 How. U. S. 446, Sec. 29, 30. Salyers vs. Ross, 15 Ind. 130, Sec. 219. Salter vs. Sutherland, 123' Mich, 225, See. 219. TABLE OF CASES. 6C0 (References are to sections.) Salt Lake County vs. Clinton, 39 Utah, 462, Sec. 15». Sampson Co. vs. Commonwealth, 208 Mass. 372, Sec. 70. Samuell vs. Howarth, 3 Meriv. 272, Sec. 81. Samuels vs. Shelton, 48' Mo. 444, Sec. 147. Sanborn vs. Flagler, 9 Allen 474, Sec. 2», 30. Sanchez vs. Forster, 133 Cal. 614, Sec. 218. Sanders vs. Weelburg, 107 Ind. 266, Sec. 253, 273, 274, vs. Wettermark, 20 Tex. Civ. App. 175, Sec. 274: Sanderson vs. Aston, L. R., 8 Ex. 73, Sec. 73, 78', 107. Sandilands vs. Marsh, 2 Barn. & Aid. 673, Sec. 11. Sandoval vs. U. S. Fidelity & Guar. Co., 12 Ariz. 348, Sec. ISIT. Sanford vs. Willetts, 29 Kan. 647, Sec. 208. Sannes vs. Koss, 103' Ind. 558, Sec. 203. San Diego Water Co. vs. Pacific Coast S. S. Co., 101 Cal. 216, Sec. l&l. San Francisco vs. Staude, 92 Cal. 560, Sec. 15, 106. San Luis Obispo Co. vs. Famum, 108 Cal. 567, Sec. 163. Sapp vs. Aikeui 68 Iowa 690, Sec. 288. Saigemt vs. Johns, 206 Pa. 386, Sec. 43. vs. Robbins, 19i N. H. 572|, Sec. 10. vs. Salmond, 27 Me. 530, Sec. 248. vs. St. Mary's Orphan Boys' Asylum, 190 N. Y. 304, Sec. 197. vs. WalMs, 67 Tex. 483, Sec. 224. Sasscer vs. Young, 6 Gill. & Johns. (Md.) 243, Sec. 98. Sather Banking Co. vs. Brlggs, 138 Cal. 724, Sec. 18^ Satterfield vs. Spier, 114 Ga. 127, Sec. 1. Saunders vs. Wakefield, 4 Bam. & Aid. 585, Sec. 24, 26. Savage vs. First Nat. Bank, 112 Ma.. SOS, Sec. 9. vs. Fox, 60 N. H. 17, Sec. 16, 57. Savings Bank vs. Albee, 63 N. H. 152, Sec. 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. 587, Sec. 1^. Sawyer vs. Chambers, 43 Barb. 6^, Sec. 103. vs. Fernald, 59 Me. 500, Sec. 9. Sayels vs. Sims, 73 N. Y. 551, See. 264. Scarlett vs. Stein, 40 Md. 512, Sec. 29. Schafer vs. Farmers' & Mechanics' Bank, 59 Pa. St. 144, Seo. 10, 29. Sehaefer vs. Henkel, 75 N. Y. 378, Sec. 142. Schram vs. Werner, 85 Hun 293, Sec. 263, 264. Schuff vs. Pflanz, 99 Ky. 97, Sec. 150. Schuylkill County vs. Copley, 67 Pa. St. 366, Sec. 13. Schureman vs. People, 5'5 III. App. 629, Sec. 174. Schuek vs. Hagar, 24 Minn. 339, Sec. 181. Schuster vs. Arena, 83 N. J. L. 79, Sec. 14. vs. Weiss, 114 Mo. 158, Sec. 186. Schmumcker vs. Steidemann, 8 Mo. App. 302, Sec. 182, 188. Schuyler vs. Sylvester, 28 N. J. L. 487, Sec. 202, 206. 610 TAirj! OF CASES. (References are to sections.) Scheid vs. Leibschutz, 61 Ind. 38i, Sec. 20. Schcning vs. Cofer, 97 Ala. 726, Sec. 197'. Schwartz vs. Hyman, 107 N. Y. 562, Sec. 56. vs. Smith, 128 N. Y. S. 1, Sec. 82. Schunack vs. Art Metal Novelty Co., 84 Conn. 3»1, Sec. 201. Schultz vs. U. S. Fidelity & Guar. Co., 20 N. Y. 230, Sec 186. Schoonover vs. AUen, 40 Ark. 132, Sec. 245, 249. vs. Osborne, 108 Iowa 453, See. 512. Schneider vs. Norris, 2 MauL & Sel. 286, Sec. 30. vs. Schiffman, 20 Mo. S71, Sec. fe, 9, 10. vs. Wallingford, 4 Col. App. 150, See. 201. Schnitzel's Appeal, 49 Pa. 23, Sec. 246. Schmeckel Cloak & Suit Co., In re, 3 Nat. B. News 110, Sec. 2i5a Schreiber vs. Wonn, 164 Ind. 7, Sec. 76-a. Schroeppell vs. Shaw, 3 N. Y. 446, Sec. 99. Schroeder vs. Turner, 68 Md. 506, Sec. 10. Scholze vs. Steiner, 100 Ala. 148, Sec. 117. Schlageek vs. Widholm, 59 Neb. 541, Sec. 133. Schleissman vs. Kallenberg, 72 Iowa 338, Sec. 249. Schirott vs. Philippi, 3 Ore. 484, Sec. 180. School District vs. Lapping, 100 Minn. 139, Sec. 132. vs. Massachusetts Bonding Co., 92 Ky. 53, Sec. 210, vs. Smith, 63 Ore. 586, Sec. 7S. Scofield vs. Churchill, 72 N. Y. 665', Sec. 218. vs. Gaskill, 60 Ga. 277, See. 268. Scott vs. EUitt, 63 N. C. 215, Sec. 212. vs. Hall, 6 B. Mon. (Ky.) 285, Sec. 831. vs. Milton, 26 Fla. 52, Sec. 181. vs. Patchin, 54 Vt. 253, Sec. 248. vs. Phillips, 140 Pa. 91, Sec. 135. vs. Saflfold, 37 Ga. 384, Sec. 83. vs. Timberlake, i83 N. C. 382, Sec. 281. vs. White, 71 III. 287, Sec. 41. Scott's Appeal, 88 Pa> 179, Sec. 251. Scott Co. vs. Fluke, 34 Iowa 317, Sec. 170. vs. Ring, 29 Minn. 398, Sec. ISd. Scotten vs. F^an, 62 Iowa 236, Sec. 171. Screwman's Benev. Assn. vs. Smith, 70 Tex. 168, Sec. 15k Soribner vs. Adams, 73 Me. 541, Sec. 244, 253, 274. Scroggin vs. Holland, 16 Mo. 419, Sec. 103, 117. Seaboard Air Line vs. Hewlett, 94 S. C. 478, See. 212. Seaman vs. Slater, 18 Fed. Rep. 485, Sec. 69. Sears vs. Brink, 3 Johns. 210, Sec. 27". Seaver vs. Pierce, 42 Vt. 305, Sec. 173. Seav«y vs. Beckler, 132 Mass. 203', Sec. 206. Seattle Crockery Co. vs. Haley, 6 Wash. 302, Sec. 200, 205, 20& Searing vs. Berry, 58 Iowa 20, Sec. 249. TABLE OP CASES. ', 611 (References are to sections.) Seat vs. Cannon, 20 Tenn. 471, Sec. 221. Sebald vs. Citizens Deposit Bank, 31 Ky. Law Rep. 1214, Sec. 15. Second National Bank vs. Hill, 76 Ind. 223, See. 101. vs. Wentzel, 151 Pa. 142, Sec. 97. Security Ins. Co. vs. St. Paul Ins. Co., 50 Conn. 239, Sec. 271, 279. Sedgwick vs. Dawkins, 1& Ma. 572, Sec. 181. Seegai's Exrs. vs. State, 5 Har. & J. (Md.) 488', Sec. 220. Sefton vs. Hargett, 113 Ind. 592, Sec. 117. Seffes vs. Lamke, 40 Minn. 27, Sec. 131. Segari vs. Mazzei, lift La. 1026, Sec. 76-a. Seitz Brewing Co. vs. Ayres, 60 N. J. E. 190, Sec. 109. Seidenbender vs. Charles' Adm., 4 S. & E. 151, Sec. 166. Seibert vs. True, 8 Kas. 5a, Sec. 25©. Seixas vs. Gonsoulin, 40 La. Ann. 351, Sec. 251. Selby vs. City of New Orleans, 119 La. 900, Sec. 122. SeUers vs. Territory, 32 Okl. 147, Sec. 28-a. Seligman vs. Gray, 66 Mich. 341, Sec. 114. Sensenig vs. Parry, 113 Pa. 115, Sec. 197, 213. Sepp vs. McCann, 47 Minn. 364, Sec. 131. Seufert vs. Gille, 230 Mo. 453, Sec. 11. Sewell vs. Breathitt Lodge, 150 Ky. 542, Sec. 15, 106i, 108. Seymour vs. Mickey, 15 0. S. 515, Sec. 8, 9, 112. vs. Oelrichs, 156 Cal. 78B, Sec. 29. Shapleigh Hardware Co. vs. Wells, 90 Tex. 110, Sec. 23. Sharkey vs. McDermott, 91 Mo. 647, Sec. 45. Shakman vs. Credit System Co., 92 Wis. 366, Sec. 2331. Shaffstall vs. McDamiel, 152l Pa. 598, Sec. 82. Sharp vs. Allgood, 100 Ala. 183, Sec. 108. vs. United States, 4 Watts (Pa.) 21, Sec. 111. Sharpe vs. Handing, 65 Mo. App. 28, Sec. 193. vs. Hunter, 16 Ala. 765, Sec. 203. vs. Smith, 59 Ga. 707, Sec. 231. vs. Speckenagle, 3 Serg. & R. 463, Sec. 100. Shackamaxon Bank vs. Yard, 143 Pa. 129, Sec. 119. Shattuck vs. Adams, 136 Mass. 34, Sec. 135. Sharon vs. Hill, 26 Fed. Rep. 337, Sec. 180. Shannon vs. Dodge, 18 Col. 164, Sec. 187, 189. Shaeffer vs. Clendenin, 100 Pa. 565', Sec. 253. Shay vs. Cruxton, 11® N. Y. Supp. 1123, See. 36. Shepard vs. Pebbles, 36' Wis. 373, Sec. 226, 268. Sheppard vs. Collins, 12 Iowa 570, See. 199. vs. Daniel Miller Co., 7 Ga. App. 760, Sec 66, 77. vs. Newton, 139 N. C. 533, Sec. 38. Sherman vs. Black, 49 Vt. 198i, Sec. 264. vs. Foster, 158 N. Y. 587, Sec. 274. vs. Harbin, 125 Iowa 174, Sec. 15, 106. Sherman''s Admr. vs. Shaver, 73 Va. 1, Sec. 253, 2S4. 612 TABLE OP CASES. (References are to sections.) Sherman/ County vs. Nichols, 6S Neb. 2S0, Sec. 8S, 114, Shepherd vs. May, 115 V. S. 605, Sec. 23, 90. Sherwood vs. Stone, 14 N. Y. 267, See. 44. Sherry vs. Miller, 7' Lea 305., Sec. 99. Sherrell vs. Goodrum, 3i Humph. 41», Sec. 157. Sheldon vs. Davidson, 85' Wis. 138, See. 110. vs. Hill, 33 Mich. 171, Sec. 168. vs. Van Buskirk, 2 N. Y. 473, Sec. 172. vs. Villiams, 11 Neb. 272, Sec. 99. Sheltsn vs. Smith, 62; Tenn. 82, Sec. 224. vs. State, 5® Ind. 33il, Sec. 160. Shenandoah Bank vs. Ayres, 87 Iowa 526, Sec. US. Shelby vs. Alcorn, 36 Miss. 273, Sec. 145. Sheffield vs. Whitfield, 6 Ga. App. 762, See. 66'. Shevlin vs. Whelen, 41 Wis. 8S, Sec. 202. Shieber vs. Traudt, 19 Ind. App. 349, Sec. 83'. Shipman vs. Brown, 36 Okl. 623, Sec. 231. Shine's Admr. vs. Central Savings Bank, 70 Mo. 524, See. 17i 50. Shields vs. Titus, 46 O. S. 528, Sec. 45. Shiekle Iron Co. vs. Water Works Co., 83 Iowa 396, Sec. 50. Shipp's Adm. vs. Suggett's Adm., 9 B. Mon. 5, Sec. 75. Shimer vs. Hightshue, 7 Black. (Ind.) 238i, Sec. 186. Shinn vs. Shinn, 91 III. 477; Sec. 251. Shook vs. Vanmater, 22 Wis. 5.32, See. 31. Shows vs. Pendry, 9® Ala. 248, Sec. 188. vs. Steiner, 175 Ala. 363, Sec. 66. Shores-Mueller Co. vs. ICnox, 141 N. W. 948, Sec. 67v Shreffler vs. Nadelhoffer, 133 111. 536, Sec. 194. Shreve vs. Hankinson, 34 N. J. Eq. 76, Sec. 260. Shrewsbury Savings Institution's Appeal, 94 Pa. 309, Sec. 140. Shriver vs. Lovejoy, 32 Cal. 574, See. 112. vs. Reister, 65 Md. 278, Sec. 217. Shultz vs. Morrison, 60 Ky. 98, Sec. 20S. Shumway vs. Heed, 34 Me. 560, Sec. 140. Shupe vs. Galbraith, 32 Pa. 10, Sec. 57. Shutts vs. Fingar, 100 N. Y. 539, Sec. 100. Shuford vs. Cook, 80 S. E. 61, Sec. 267. Sibley vs. McAUaster, 8 N. H. 389, See. 284. vs. Williams, 3 GiU. & Johns. (Md.) 52, Sec. 25>. Sichel vs. Carrillo, 42 Cal. 493, Sec. 95. Sigoumey vs. Wetherell, 6 Met. 553, Sec. 66, 86, 94, 96. Silsbe vs. Lucas, 53 HI. 479, Sec. 196. Sime vs. Lewis, 128 N. W. 468, Sec. 90. Simmons vs. Sharp, 2 Ala. App. 385, Sec. 183, 188'. Simons vs. Steel, 36 N. H. 73, Sec. 50. Simons & Co. vs. McDowell, 125 Ga. 203^ Sec. 74. Simmons vs. Camp, 71 Ga. 54, Sec 2684 274. TABLE OF CASES. B13 (References are to sections.) Simpson vs. Comm., 31 Ky. 523, Sec. 231. TB. Hall, 47 Conn. 417, Sec. 25. vs. Hennrng, L. R., 10 Q. B. 406, Sec. 100. vs. Nance, 1 Spears (S. C.) 4, Sec. 34. vs. Penton, 2 Cromp. & Mees. 430, Sec. 36. vs. Vaughan, 2 Atk. 31, Sec. 69, 119. Simson vs. Brown, 68 N. Y. 355', Sec. 131. vs. Oooke, 8 Moore 588, Sec. 54. Simonds vs. Heinn, 22 La. Ann. 296, Sec. 186 Simonson vs. Grant, 36 Minn. 439, Sec. 79. Simeom vs. Cram, 121 Mass. 492, Sec. 206. Sims vs. Harris, 47 Ky. 56i, Sec. 143. vs. Wallace, 6 B. Mon. (Ky.) 410, Sec. 28il. Sinclair vs. National Surety Co., 1321 Iowa 549, Sec. 23S. Singer Mfg. Co. vs. Bennett, 28 W. Va. 16, Sec. 26*. vs. Boyette, 74 Ark. 600, Sec. 76. vs. Forsyth, 108 Ind. 334, Sec. 126. vs. Draughan, 121 N. C. 88, Sec. 71. vs. Littler, 56 Iowa 601, Sec. 5. vs. Ponder, 82 Tex. 653, Sec. 144. Sipe vs. Taylor, 106 Va. 231, Sec. 245. Sitgreaves vs. Farmers Bank, 49 Pa. 359, Sec. 09. Sjoli vs. Hogenson, 19 N. D. 82, Sec. 221. Skillett vs. Fletcher, 1 L. R. C. P. 217, Sec.. 152, Skinker vs. Armstrong, 86 Va. 1011, Sec. 43. Skinner vs. Tirrel, 150 Mass. 474, Sec. 250. Skipwith vs. Hurt, 94 Tex. 322, Sec. 248. Skrainka vs. Rohan, 18 Mo. App. 340, Sec. 27S. Slack vs. Kirke, 67 Pa. St. 380, Sec. 259. Slagle vs. Entrekin, 44 0. S. 637, Sec. 221. Sledge vs. Lee, 19 Ga. 411, Sec. 198. Sleigh vs. Sleigh, 5 Ex. 514, Sec. 265. Sloan vs. Gibbes, 56 S. C. 480, See. 269, 272. vs. Langert, 6 Wash. 26, Sec. 205. Sloe vs. Pool, 15 111. 47, Sec. 269. Small Co. vs. Qaxton, 1 Ga. App. 88, Sec. 18, 50, 59!. Smith vs. Allen, 1 N. J. Eq. 43, Sec. 17'. vs. American Bonding Co., 160 N. C. 674, Sec. 229. vs. Austin, 9 Mich. 465, Sec. 269. vs. Bland, 46 Ky. 21, Sec. 218. vs. Butler, 25 N. H. 5121, Sec. 122. vs. Conrad, 15 La. Ann. 579, Sec. 274. vs. Cuyler, 78i Ga. 654, Sec. 217. vs. Dann, 6 Hill 543i, Sec. 66. vs. Davis, 76 S. E. 670, Sec. 249. vs. Eakin, 2 Sneed (Tenn.) 456, Sec. 198, 200. vs. Easton, 54 Md. 138, Sec, 30, 614 TABLE OP CASES. (References are to sections.) bmith VS. Erwin, 77 N. Y. 466, Sec. 99. vs. Exchange Bank, 5 Ga. App. 130, Sec. 85. vs. First National Bank of London, 107 Ky. 267, Sec. 1& vs. Preyler, 4 Mont. 4»9, Sec. 115. vs. Gillam, 80 Ala. 29©, Sec. 95. vs. Gregory, W Gratt. (Va.) 248, Sec. 222. vs. Gummere, 39 N. J. Eq. 27, Sec. 224. vs. Harbin, 124 Ind. 434, Sec. 261. vs. Hughes, 24 111. 270, Sec. 187. vs. Hyde, 36 Vt. 303, Sec. S3. vs. Ide, 3 Vt. 280, Sec. 27: vs. Jackson, 97 Iowa 112, Sec. 140. vs. Jones, 70 Me. 138, Sec. 172. vs. Keniston,- 100 Mass. 172, Sec. 172, vs. Kirkland, 81 Ala. 345, Sec. Ill, 127. vs. Kitchens, 5'! Ga. 158, Sec. 232. vs. Kuhl, 26 N. J. Eq. 97, Sec. 192. vs. Latimer, 15 B.. Mon. (Ky.) 75, See. 24S. vs. Lisher, 23 Ind. 500, Sec. 213. vs. Mason, 44 Neb. 610, Sec. 269', 271, 272. vs. Miller, 152. Ala. 483, Sec. 36. vs. Moberly, 10 B. Mon. (Ky.) 266, Sec. 111. vs. Molleson, 148 N. Y. 241, Sec. 50, 76-b, 126. vs. Montgomery, 3 .Tex. 19®, Sec. 50, 52. vs. Moore, 90 Ind. 294, Sec. 145. vs. Morrill, 54 Me. 4S, Sec. 278. vs. Old Dominion Bldg. xissn., 119 N. C. 257, Sec. 9& vs. Rumsey, 38 Mich. 189, Sec. 249, 270. vs. Sayward, 5 Me. 504, Sec. 279. vs. Shelden, 35 Mich. 42, Sec. 23, 90. vs. State, 46 Md. 617, Sec. 114, 269i. vs. State, 10 Wyo. 157, Sec. 59i. vs. State, 12 Neb. 309, Sec. 282. vs. Steele, 25 Vt. 427, Sec. 8&. vs. United States, 2 Wall. 219., Sec. 74, 153. vs. U. S. Express Co., 135 111. 27'9, Sec. 202. vs. Whitaker, 11 111. 417, Sec. 181. vs. Whiting, 100 Mass. 122, Sec. 212. vs. Young, 173 Ala. 190, See. 280. vs. Zimmer, 45 Mont. 282, Sec. 158.. Smith's Executors vs. Anderson, 18 Md. 520, Sec 262L Smith Bros. vs. MiUer, 152 Ala. 486, Sec. 3&. Smithwick vs. Kelly, 79 Tex. 564, Sec. ISl. Snaith vs. Smith, 27 N. Y. S. 370, See. 76i-b. Snodgrass va. Shader, 168 S. W. 567, Sec. 79. Snow vs. Brown, 100 Sec. 99. vs. Burton-Gardner Co., 14 Utah 420, See. 111. vs. Chetwood, 8 N. J. L. 1, See. 134. vs. Peoples Nat. Bank, 118 N. Y. Supp. 641, Sec. 48. vs. Smith, 155 N. Y. 185, Sec. 98, 244. Standard Brewery Co. vs. Kelly, 66 111. App. 267, Sec. 11. Standard Oil Co. vs. Holmes, 82 111. App. 47«, Sec. 127. Standard Underground Cable Co. vs. Stone, 54 N. Y. S. 368', Sec. 76. Stanford vs. Connery, 84 Gav 731, Sec. 282. Staver Carriage Co. vs. Jones, 32 Okl. 713, Sec. 43. Stauber vs. EUett, 140 Mich. 271, Sec. 126. Stamley vs. McElratU, 86 Cal. 449, Sec. 282, 285'. vs. Miles & Adams, 36 Miss. 434, Sec. 16. vs. Western Ins. Co., L. R., 3 Ex. 71, Sec. i9. Stariha vs. Greenwood, 28 Minn. 52], Sec. 43. Starry vs. Johnson, 32 Ind. 438, Sec. 114. Stallings vs. Bank, 59 Ga. 701, See. 98. Stallworth vs. Preslar, 34 Ala. 505, Sec. 269. Stark vs. Raney, 18 Cal. 62a, Sec. 139. Staley vs. Howard, 7 Mo. App. 377, Sec. 197. Stanton vs. State, 82 Ind. 463, See. 217. Stahl vs. Berger, 10 Serg. & Eawle 170, Sec. 20. Staver vs. Locke, 22 Ore. 619, See. 50. vs. Zlissiner, 6 Wash. 173, Sec. 93'. Steel vs. Auditor General, 111 Mich. 381, Sec. 13i, vs. Dixon, 17 Ch. Div. 825, Sec. 274. vs. Johnson, 96 Mo. App. 147, Sec. 90. Steele vs. Crider, 61 Fed. Kep. 484, Sec. 182. vs. Graves, 68 Ala. 21, Sec. 100. vs. Holt, 75 N. C. 188', Sec. 138. vs. Mealing, 24 Ala. 285, See. 274. Steffes vs. Lemke, 40 Minn. 27, See. 131. Stein vs. Deutsch, 178 111. App. 616', Sec. 40. vs. Passmore, 25 Minn. 296, Sec. 8. Steinhardt vs. Leman, 41 La, Ann. 835, Sec. 20.3i. Steinhauer vs. Colraar, 11 Colo. App. 494, Sec. 184. Stephens vs. Elver, 101 Wis. 392, Sec. 76-a. vs. Miller, 3 Ky. L. Rep. 523, Sec. 182. vs. Shafer, 48 Wis. 54, Sec. liei. Stephenson vs. Sinclair, 14 Tex. Civ. App. 133, Sec. 164. Stevens vs. Carroll, 131 Iowa 170, Sec. 177. vs. Partridge, 88 III. App. 665, Sec. 143. TABLiE OF OASES. 621 (Refeiences are to sections.) Stevens vs. Tucker, 87 Ind. 109; See. 263, 27». vs. Tuite, 104 Mass. 3B8i, Sec. 214. Stevenson vs. Hoy, 43 Pa. St. 191, Sec. 22. Stearns vs. Bates, 40 Conn. 306, Sec. 51, 25€. vs. Irwini 62 Ind. 558, Sec. 280. Stern vs. People, 102 III. 540, See. 108, 162. Sterns vs. Marks, 35 Barb. 565, Sec. 104. Steadman vs. Guthrie, 4 Met. (Ky.) 147, Sec. 57. Stetson vs. Bajik, 2 0. S. 167, Sec. 174. vs. Moulton, 140 Mass. 597, Sec. 248. Stetson & Post Mill Co. vs. McDonald, 5 Wash. 496, Sec. 13'1. Stebbins vs. Niles, 21 Miss. 307, Sec. 181. Sternberg vs. State, 42 Ark. 127, Sec. 232. Stenhouse vs. Davis, 82 If. C. 432, Sec. 248. Sterling vs. Marine Bank, 120 Md. 396, See. 225i Steward vs. Welch, 84 Me. 308, Sec. 266'. Stewart vs. Behm, 2 Watts 356, Sec. 104. vs. Chicago Ry. Co., 141 Ind. 55, Sec. 112. vs. Eddowes, L. E., C. P. 311, Sec. 28. vs. Goulden, 52 Mich. 143, Sec. 273i. vs. Knight & Jillson Co., 166 Ind. 498, Sec. 50, '61, 66, &l'. vs. Parker, 55 Ga. 656, Sec. 94. vs. Ranney, 26 How. Pr. Z79, Sec. 76. vs. Sharp Co. Bajik, 71 Ark. 585, Sec. 61, 66, 67. Stirling vs. Burdett, 2 Ch. 418, Sec. 260'. vs. Forrester, 3 Bligh, 590, See. 279. Stillman vs. Northup, 109 N. Y. 473, Sec. 51. Stinson vs. Brennan, 1 Cheves Law (S. C.) 15, Sec. 286. Stillings vs. Porter, 22 Kan. 17, Sec. 183. Stone vs. City of Augusta, 46' Me. 127, Sec. 169. vs. Dennison, 13 Pick. 1, Sec. 25. vs. Goldberg, 6 Ala. App. 249', Sec. 15, lOSt vs. Graves, 8 Mo. 148i, Sec. 169. vs. Rockefeller, 29 0. S. 625, Sec. 63'. vs. Walker, 13 Gray 613, Sec. 37. vs. White, 8 Gray 589, Sec. 75. Stoner vs. Millikin, 86 111. 218', Sec. 108. Stoops vs. Wittier, 1 Mo. App. 420, Sec. 103. Stockton vs. Stockton, 40 Ind. 2i26'i Sec. 114. Storm vs. United States, 94 U. S. 76, Sec. 122. Stout vs. Ennis, 28 Kan. 706, Sec. 147. Stout, In re, 109 Fed. Rep. 794, Sec. 280. Stockmeyer vs. Oertling, 35i La. Ann. 467, Sec. 275'. Stokes vs. Little, 66 111. App. 256, Sec. 248. vs. People, 63 111. 489', Sec. 229. Stockwell vs. Robinson, 9 Houst. (Del.) 313, Sec. I65i Stovall vs. Banks, 10 Wall. 583, Sec; 221. vs. Commonwealth, 84 Va. 246, Sec. 22. 622 TABLE -OP CASES. (References are to sections.) Stoll VS. Padley, 100 Mich. 404, Sec. 189. Storz vs. Finklestein, 4» Neb. 27, Sec. 203. Straey vs. Bank of England, 6 Bing. 754, Sec. 93. Strain vs. Babb, 30 S. C. 342, Sec. 159. Street vs. Chicago Co., 157 III. 605, Sec. 281. Sbrouse vs. Elting, 110 Ala. 132, Sec. 46. Strange vs. Lee, 3 East. 484, Sec. 52. Strong vs. Foster, 17 C. B. 201, Sec. 101. vs. Hasterlik, 146 111. App. 346, Sec. 209. vs. Riker, 16 Vt. 568, S©!. 10. Strw>p vs. McKeuzie, 3S Tex. 132, Sec. 112. Stroud vs. Thomas, 139 Cal. 274, Sec. 16, 82. Stringfleld vs. Hirseh, 94 Tenn. 425, Sec. 197. Strunk vs. Ochletree, 11 Iowa 158', Sec. 164. Stubbins vs. Mitchell, 82 Ky. 595!, Sec. 26», 28B. Stults vs. Zahn, 117 Ind. 297, Sec. 188. Sturges vs. Circleville Bank, 11 6. S. 133, Sec. 56l Stuart vs. Lancaster, 84 Va. 772, See. 85. vs. Liveaay, 4 W. Va. 45, Sec. 123. St. Albans Bank vs. Dillon, 30 Vt. 122, Sec. 104. St. Francis Mill vs. Sugg, 8® Mo. 476, See. 250. St. John's College vs. Aetna Indemnity Co., 201 N. Y. 335, Sec. T6-b. St. Louis vs. Foster, 24 Mo. 141, See. 17'4. vs. Hemeing, 23& Mo. 44, Sec. 229i. vs. Von Puhl, 1331 Mo. 561, Sec. 131. St. Louis Brewing Assn. vs. Hayes, 71 Fed. Rep. 110, Sec. 73. St. Louis L. & D. Ky. Co. vs. Wilder, 17 Kan. 239, Sec. 181. St. Louis Smelting Co. vs. Wyman, 22 Fed. Rep. 184, Sec. 188. St. Paul & thiluth R. Co. vs. Blackmar, 44 Min. 514, Sec 49. St. Paul vs. Leek, 57 Minn. 87, Sec. 117. Sublett vs. McKinney, 19 Tex. 438, Sec. 247. Succession of Simonds, 26 La. Ann. 319, Sec. 186t Sullivan vs. Hugely, 48' Ga. 486', Sec. 8i2. vs. State, 59 Ark. 47, Sec. 99. vs. Williams, 43 S. C. 480, Sec. 201. Sully vs. Childress, 106 Tenn. 109', Sec. 82. Suman vs. Inman, 6 Mo. App. 384, See. 44. SummerhiH vs. Tapp, 52 Ala. 207, Sec. 99. vs. Trapp, 48 Ala. 303, Sec. 100. Sumpter vs. Wilson, 1 Ind. 144, Sec. 199. Supervisors vs. Bristol, 99 N. Y. 316, Sec. 174. vs. Kennicott, 103 U. S. 554, Sec. 188. Supervisors Lauderdale vs. Alford, 65 Miss. 63, Sec. 156. Suppiger vs. Gruaz, 137 III. 216, Sec. 215. Supreme Council vs. Boyle, 15' Ind. App. 342, Sec. 190. Supreme Council Catholic Knights vs. Fidelity & Casualty Co., 63 Fed. Rep. ia, Sec. 141, 147, 23S. TABLE OF CASES. 623 (References are to sections.) Sutherland vs. Carr, 85 K. Y. 105, Sec. 146, 163. vs. Phelps, 22 111. 91, Sec. 186. Sutton & Co. vs. Grey, 1 Q. B. 285, Sec. 44. Swan vs. Gray, 44 Miss. 383, Sec. 148'. vs. Hill, 15a U. S. 394, Sec. 181. vs. Smith, 57 Miss. 548, Sec. 249', 251. vs. Timmons, 81 Ind. 243, Sec. 195. Svrartwout vs. Payne, 19' Johns. 296, See. 97. Swain vs. Barber, 29 Vt. 292, Sec. 277. Swasey vs. Doyle, 88 Mo. App. 536, Sec. 76-a. Swarts vs. Fourth Nat. Bank, 117 Fed. 1, Sec. 97. Sweet vs. Jeffries, 48 Mo. 279', Sec. 248. Swift vs. Beers,. 3 Denio 70, Sec. 103. vs. Plessner, 39 Mich. 178', Sec. 208. Swisher vs. Deering, 204 111. 203, Sec. 49, 67, 68. vs. McWhinney, 64 0. S. 343, Sec. 227. Switzer vs. Baker, 95 Cal. 539, Sec. 58. vs. Skiles, 8 111. 5-29, Sec. 46. Switzer, In re, 201 Mo. 66, Sec. 222. Swofford Bros. vs. Livingston, 65 Pac. Kep. 413, Sec. 186L Sylvester vs. Downer, 20 Vt. 355, See. S, 68. Tabor vs. Clark, 15 Col. 434, Sec. 197. vs. Miles, 5 Col. App. 127, See. 10. Talbot vs. Gay, 18 Pick. 534, Sec. 67. Talcott vs. Henderson, 31 0. S. 162, Sec. 110. Tanquary vs. Bashor, 42 Ool. 231, Sec. 182. vs. People, 251 Col. App. 531, Sec. 2S1. ■Tapley vs. Goodsell, 122 Mass. 176, Sec. 202. Tarpey vs. Sharp, 12 Utah 383, Sec. 188'. Tarr vs. Ravenscroft, 12 Gratt. 642, Sec. 271, 273. Tate vs. Booe, 9 Ind. 13, Sec. 135. vs. M^infree, 37 S. E. (W. Va.) 986, Sec. 262. Tatlook vs. Smith, 6 Bing. 338, Sec. 93'. Tatum vs. Tatum, 1 Ired. Eq. (N. C.) 113, Sec. 24*. Taussig vs. Eeid, 145 III. 488, Sec. 18, 68. Taylor vs. Alexander, 6 0. 144, Sec. 173. vs. Allen, 40 Minn. 433, Sec. 46. vs. Farmers Bank of Ky., 87 Ky. 398, Sec. 255. vs. Glaser, 2 Serg. & Rawle 502, Sec. 134. vs. Higgins, 3 East. 169, Sec. 282. vs. Jeter, 23 Mo. 244, Sec. 98. vs. McClung's Ex., 2 Houst. (Del.) 24, Sec. 52, 66. vs. Mygatt, 26 Conn. 184, Sec. 135) 2181. 624 TABLE OF CASES. (References are to sections.) Taylor vs. Reynolds, 53 Oal. 686, Sec. 269. vs. Ross, 3 Yerg. 3'30, Sec. 27. vs. Smith, 116 N. C. 531, See. 49. vs. Sulliva,n, 4.'i Minn. 309, Sec. 153. vs. Taintor, lU Wall. 371, Sec. 232. vs. Taylor, 12. Lea (Tenn.) 714, Sec. 74. vs. Wetmore, 10 0. 49-1, Sec. 52. vs. AVightman, 51 Iowa 411, Sec. 16. Taylor County vs. King, et al., 73 Iowa 153, Sec. 15', 23-a, lOff. Teaff vs. Ross, 1 0. S. 469i, Sec. 99, 2S7. Teasley vs. Ray, 9 Ga. App. 649, S«c. 23-a. Teberg vs. Swenson, 32 Kan. 224, Sec. 279. Tebo vs. Betancourt, 73 Miss. 869, See. 20g. Teel vs. Tice, 14 N. J. L. 444, Sec. 186, 187. Teeter vs. Pierce, HE. Mon. 389', Sec. 274. Teeters vs. Lamborn, 43 0. S. 144, Sec. 42. Temple vs. Baker, 125 Pa. 634, Sec. 10. Templetou vs. Shakley, 107 Pa. 370, Sec. 98. Ten Eyck vs. Holmes, 3i Sandf. Ch. 428, See. 256. vs. Sayer, 76 Hun 37, Sec. 197. Terrell vs. Ingersoll, 78 Tenn. 77, See. 196. Terry vs. Groves, 25Si Mo. 450, Sec. 23. Territory vs. Conner, 17 Okl. 13S, Sec. 229, 231. vs. Minter, 88 Pac. 1130, Sec. 231. Tessier vs. Crowley, 17 Neb. 207, Sec. 12. Tevis vs. Randall, 6 Cal. 682, Sec. 146. Texas Trunk Ry. vs. Jackson, S5 Tex. 605, Sec. 186. Thalheimer vs. Crow, 13 Col. 397, Sec. 117, 184. Thayer vs. Clark, 48 Barb. 24S, Sec. 217. vs. Daniels, 110 Mass. 345, Sec. 280, 287. vs. King, 31 Hun 437, Sec. 83. vs. Luce, 22 0. S. 62, Sec. 29. The Hattie M. Spraker, 29 Fed. Rep. 4S7, Sec. 251. Third National Bank vs. Laidlaw, 80 0. S. 91, Sec. 40, 50. vs. Owen, 101 Mo. 568, Sec. 15, 106, 127, 132. Thomas vs. Bank, 40 Neb. 501, Sec. 11. vs. Bleakie, 136 Mass. 568, Sec. 127. vs. Burrus, 23 Miss. 950, Sec. 19, vs. Carter, 63 Vt. 609, Sec. 282. vs. Churchill, 48 Neb. 266', See. 46. vs. Cleveland, 33 Mo. 126, See. 98'. vs. Cook, 8 Barn. & Cres. 72S, Sec. 32, 26S, 267. vs. Hinkley, 19 Neb. 324, Sec. 21. vs. Kinkead, 55 Ark. 503, See. 170. vs. Markmann, 43 Neb. 823, Sec. 164, 17T. vs. McDaneld, 77 Iowa 299, Sec. 197. TABLE OF CASES. 625 (References are to sections.) TIioma3 vs. State, 127 S. W. 1030, Sec. 230. vs. Steele, 22 Wis. 207, Sec. U5. vs. Stetson, 59 Maine 229, Sec. 81. vs. Williams, 10 Barn. & Cr. 664, See. 16. vs. Wright, 98 N. C. 272, Sec. 58. Thomasan vs. Clark, 3il 111. App. 404, Sec. 114, vs. Wade, 72 Ga. 160, Sec. 249. Thompson vs. Board, 30 111. 99, Sec. 167. vs. Browne, 39' N. J. L. 2, Sec. 115. vs. Dickerson, 22 Iowa 360, Sec. 158, vs. Hall, 16 Ala. 204, Sec. 27. vs. Jackson, 93 Iowa 376, Sec. 168. vs. Lack, 3 C. B. R. 540, Sec. 114. vs. Mann, 66 W. Va. ©48, Sec. 221. vs. Massie, 41 0. S. 307, Sec. 20. vs. Prouty, 27 Vt. 14, Sec. 128. vs. Robinson, 34 Ark. 44, Sec. 84, 115. vs. State, 37 Miss. 518, Sec. 153. vs. Taylor, 72 N. Y. 32, Sec. 115, 283. vs. Treller, 82. Ark. 247', Sec. 113. vs. Watson, 10 Yerg. (Tenn.) 363, Sec. IISI, 119. Thorn vs. Pinkham, 84 Me. 101, Spc. 118. Thome vs. Travellers Ina. Co., 80 Pa. St. 15, Sec 19, 138i. Thorington vs. Smith, 8 WiaU. 1, Sec. 49. Thornton vs. Thornton, 63 N. C. 211, Sec. 99. Thomburgh vs. Madrem, 33 Iowa 360, Sec. 113. Thrall vs. Mead, 40 Vt. 540, Sec. 17». Throop vs. Langdon, 40 Mich. 670, Sec. 145. Thurber vs. Corbiu, 51 Barb. 215., See. 23. Thurston vs. James, 6 R. I. 103, Sec. 86. Tidball vs. HaUey, 48 Cal. 610, Sec. 23-a, 74, 109. Tidioute Sav. Bank vs. Libbey, 101 Wis. 193, Sec, 51. Tieman vs. Haw, 49 Iowa 312, Sec. 164. Tighe vs. Morrison, 116 N. Y. 263, Sec. 31. Tilhnghast vs. Merrill, 151 N. Y. 135, Sec. 166. Tillotson vs. Rose, 11 Met. 299, See. 280. Tilt-Kenney Shoe Co. vs. Haggart, 43 Tex. Civ. App. 386, Sec. 61, 66, 67. Timm vs. Grand Rapids Brewing Co., 160 Mich. 371, Sec. 11. Tinsley vs. Kemery, 111 Mo. App. 87, Sec. 76-b. vs. Kirby, 17 S. C. 1, Sec. 19. Tischler vs. Hofheimer, 83 Va. 35, Sec. 48, 71. Titcomb vs. McAllister, 81 Me. Sm, Sec. 274. Title Guaranty & Surety Co. vs. Schmidt, 213 Fed. 199, Sec. 2i3'-a, 127, 129. vs. Slinker, 35 Okl. 128, Sec. 226. Title Guaranty. & Trust Co. vs. Haven, 89 N. E. 108BI, Sec. 24a Titus VB. Durkce, 12 Up. Can. (C. P.) 367, Sec. 73. 626 TABLE OF CASES. (References are to sections.) Tobias vs. Rogers, 13 N. Y. 59, Sec. 277. Tobin Canning C!o. vs. Fraser, 81 Tex. 407, Sec. 82. Todd vs. Greenwood Scliool Dist., 40 Mich. 294, Sec. SI. vs. Tobey, 2i9 Me. 219', Sec. 43. TofSer vs. Kesinger, 80 Kas. 549, Sec. 220. Toles vs. Adee, S4 N. Y. 222, Sec. 21, 111. Tolerton & Stetson Co. vs. Roberts, 115 Iowa 474, Sec. 118. Tolman Co. vs. HuAter, 113 Mo. App. 671, Sec. 79. vs. Means, 52 Mo. App. 386', Sec. 66. Tom vs. Goodrich, 2 Johns. 213, Sec. 279. Tompkins vs. Catawba Mills, 88 F«d. Rep. 7S0, Sec. 250. Toomer vs. Dickerson, 37 Ga. 42S, Sec. 257. vs. Rutland, 57 Ala. STS, Sec. 74. Topeka vs. Federal Union Surety Co., 213' Fed. 958, See. 233L Topping vs. Windley, 99 N. C. 4, Sec. 159. Toronto Bank vs. Hunter, 4 Bosw. {N. Y.) 64e, Sec. 261. Torp vs. Gulseth, 37 Minn. 13.5, Sec. 244, 248'. Tousey vs. State, 8 Tex. 173, Sec. 231. Toussaint vs. Martinnant, 2 T. R. 100, Sec. 279i. Towers vs. Moore, 2 Vem. 98, Sec. 119. Towle vs. Nat. Guardian Assurance Soc., 3 Giff. 42.; Sec. 110. Town of Bamet vs. Abbott, 53 Vt. 120, Sec. 134. Town of Whitestown vs. Title Guar. & Sur. Co., 13il N. Y. S. 390, Sec. 1& Towns vs. Riddle, 2 Ala. 604, See. 114. Townaend vs. Hargraves, llSi Mass. 325, Sec. 28, 47. vs. Hubbard, 4 Hill (N. Y.) 351, Sec. 142. vs. Whitney, 75 N. Y. 425, Sec. 247, 249. Townsend Nat. Bank vs. Jones, 151 Mass. 454, Sec. 2061 Trader vs. Sale, 18 0. C. C. 814, Sec. 186. Traders' Ins. Co. vs. Herber, 67 Minn. 106, Sec. 106. Traders' Nat. Bank vs. Parker, 130 N. Y. 415, Sec. 57'. Travis vs. Travis, 48 Hun 343, Sec. 13, 181. Travers vs. Dorr, 60 Minn. 173, Sec. 90. Train vs. Emerson, 80 S. E. 554, Sec. 202. Travellers Ins. Co. vs. Weber, 4 N. D. 135, Sec. 182. Trammell vs. Swan, 25 Tex. 473, Sec. 15, 105. Trapnall vs. McAfee, 60 Ey. 34, Sec. 208. Trainor vs. Board of Auditors, 89 Mich. 162, Sec. 14S(. Tracy vs. Goodwin, 5 Allen 409, Sec. 177. Trasch, In re, 31 Pac. 755, See. 252. Treasurer of City of Boston vs. Schapera, 217 Mass. 71, Sec. 177!, Treasurer of Vermont vs. Merrill, 14 Vt. 64, Sec. 229. Treweek vs. Howard, 105 Cal. 434, Sec. 218. Trimble vs. Keer-Rountree Mer. Co., 56 Mo. App. 688, Sec. 214. Trogden vs. Cleveland Stone Co., 53 111. App. 206, Sec. 187. Troup vs. Smith's Executors. 20 Johns. 33, Sec. 141. TABLE 05" CASES. '{. '-s., 627 (References are to sections.) Troy Fertilizer Co. vs. Logan, B6 Ala. 619, See. 28. Truesdell vs. Combs, 33 0. S. 18ft, Sec. 168. Trust Co. vs. National Bank, 101 U. S. 68, Sec. 51. Trustees vs. Arnold, 58 III. App. 103, Sec. 156. vs. Sheik, 119 111. m% Sec. 148', 149. vs. Smith, 88 111. 181, Sec. 15©. vs. Southard, .31 111. App. 358, Sec. 114. Trustees of Dartmouth College vs. Woodward, 4' Wheat. 518, 694, See. 145. Trustees of Seventh Baptist Church vs. Andrew & Thomas, 1151 Md. 535, Sec. 17, 76- a. Trustees of Presbyterian Board of Gilliford, 138 Ind. 524, Sec. 90. Tuck vs. Calvert, S3 Md. 209, See. 248. Tucker vs. State, etc., 11 Md. 3f22, Sec. 19, 182. vs. Stewart, 147 Iowa, 204, Sec. 222. vs. White, 5 Allen 322, Sec. 200. Tuckeman vs. French, 7 Me. 115, Sec. 66. Tudhope vs. Potts, 91 Mieh. 400, Sec. 220. Tulburt vs. Hollar, 102 N. C. 406, Sec. 22». TuUock vs. Mulvane, 184 V. S. 497, Sec. 197. Tuohy vs. Woods, 122 Cal. 665, Sec. 81, 90. Turck vs. Marshall Silver Mining Co., 8 Col. 113, Sec. 136w Turner vs. Collier, 4 Heisk. (Tenn.) 89, Sec. 164. vs. Davies, 2 Esp. 478, Sec. 267. vs. Hampton, 30 Ky. Law Rep. 179', Sec. 101. vs. Killian, 12 Neb. 5S0, Sec. 164. vs. National Cotton Oil Co., 50 Tex. Civ. App. 468, Sec. 17". vs. Sisson, 137 Mass. 191, Sec. 104. vs. State, 14 Tex. App. 108, Sec. 231. vs. Stewart, 51 \Y. Va. 493, Sec. 8». vs. Thorn, 89 Va. 745, Sec. 275. Tumbull vs. Brock, 31 0. S. 649, Sec. 82. Tuttle vs. Bartholomew, 12 Met. 452, Sec. 51. vs. Northrup, 44 0. S. 178, See. 224. Tuxbury vs. Miller, 19 Johns. 311, Sec. 138. Tweddle vs. Atkinson, 1 Best. & S. M. 3931, Sea 142. Twidwell vs. Smith, 158 111. App. 142, Sec. 203. Twitty vs. Houser, 7 S. C. 153, See. 218. Twombly vs. Cassidy, 82 N. Y. 159, Sec. 244. Tyler vs. Hamilton, 108 Ky. 120, Sec. 197. vs. Trustees, 14 Ore. 485, Sec. 117. vs. Waddingham, 58 Conn. 375, Sec. 61. Tynburg vs. Cohen, 67 Tex. 220, Sec. 203, 207. Tyng vs. American Surety Co., 48 App. Div. 240, Sec. 208i. Tyree vs. Wilson, 9 Gratt. (Va.) 60, See. 154. Tyson vs. Sanderson, 45 Ala. 364, Sec. 137, 188. 628 TABliE OF CASES. ' (References are i o sections.) Ueberroth vs. Riegel, 71 Pa. 280, Sec. 36. Uhler vs. Applegafce, 26 Pa. 140, Sec. 82. Ulen vs. Kittredge, 7 Mass. 233, Sec. 22. Ullmann Realty Co. vs. Hollander, 123 N. Y. S. 772, Sec. 7®. UUery vs. Kokott, 61 Pac. Rep. (Col. App.) 18», Sec. 181. Ulrlch vs. Farrington Co., 69 Wis. 213, Sec. 181. Ulster Co. Savings Bank vs. Ostrander, 163 N. Y. 430, Sec. 12!9i. vs. Young, 161 N. Y. 23, Sec. 238. Umsfced vs. Buskirk, 17 0. S. 114, Sec. 266. Underhill vs. Spencer, 25 Kan. 71, Sec. 1&7. Underwood vs. Campbell, 14 jST. H. 393, Sec. 2(7. vs. Robinson, 106 Mass. 296, Sec. 172. Union Bank vs. Coster, 3 X. Y. 203, Sec. 51, 66. vs. Forrest, 3 Crancb C. C. 218, See. 130. vs. Govan, 18 Miss. .?33, Sec. 99. Union Bank of Maryland, vs. Ridgely, 1 Har. & G. (Md.) 324, Sec. 128, 129. Union Central Life Ins. Co. vs. U. S. Fidelity & Guar. Co., 99 Md. 423, Sec. 233, 239. Union Dime Sav. Institute vs. Neppert, 21 N. Y. S. R. 723, Sec. 132. Union Mutual Life Ins. Co. vs. Handf ord, 27 Fed. Rep. 586, Sec. 23, 90. Union Nat. Bank vs. Oooley, 27 La. Ann. 202, Sec. 98. vs. First Nat. Bank, 45 0. S. 236, S^. 58i. vs. Rich, 106 Mich. 319, Sec. 255. Union Pacific Tea Co. vs. Dick, 87 Conn. 711, Sec. 215. Union Township vs. Smith, 39 Iowa 9, Sec. 164. Union Trust Co. vs. Shoemaker, 258 111. 564, Sec. 215. United Amer. Fire Ins. Co. vs. Amer. Bonding Co., 146 Wis. 573, See. 23®. United Walnut Co. vs. Courtney, 96 Ark. 46, Sec. 39. United States vs. Adams, 24 Fed. Rep. 348, Sec. 163. vs. Allsbury, 4 Wall. 186, Sec. 177. vs. Ambrose, 2 Fed. Rep. 552, Sec. 21. vs. Backland, 33 Fed. Rep. 156, Sec. 91. vs. Backland, 33 Fed. R*. 156, Sec. 91. vs. Boyd, 5 How. 29, Sec. 174. vs. Bradley, 10 Peters 343, Sec. 146. vs. Broadhead, 127 U. S. 212, Sec 70, 137. vs. Burgdorf, 13 App. D. C. 506, Sec. 131. VB. Curtis, 100 U. S. 119, Sec. 70, 137. vs. Dashiel, 4 Wall. 188, Sec. 164. vs. Du Faur, 187 Fed. 812, Sec. 23. vs. Edwards, 1 McLean 46(7, Sec. 145. vs. Evans, 2 Fed. Rep. 147, Sec. 231. vs. Freel, 186 U. S. 309, Sec. 76-a. vs. Haitwell, 6 Wall. 385, Sec. 145, m. TABLE OP CASES. 629 (References are to sections.) United States vs. Hazzard, 58 App. Div. 410, Sec. 76-a. vs. Hudson, GS Fed. 68, Sec. 228. vs. Jones, 36 Fed. 1&&, Sec. 167. vs. Keiver, 56 Fed. 422, Sec. 22». vs. Linn, 15 Peters 280, Sec. 146. vs. Marrin, 170 Fed. 478, Sec. 232. vs. Martin, 17 Fed. 150, Sec. 147. vs. Mason, 2 Bond 183, Sec. 146. vs. Maurice, 2 Brock &&, Sec. 145'. vs. McCartney, 1 Fed. 104, Sec. 152. vs. McClane, 74 Fed. 153, Sec. 160. vs. Morgan, 28 Fed. 48, Sec. 163. vs. Morgan, 11 How. 154, Sec. 167. vs. Morris Heirs, 153 Fed. 240, Sec. 182. vs. Moaby, 133 U. S. 286, Sec. 160. vs. Mynderse, 11 Blatch. 1, Sec. 146. vs. National Surety Co., 92 Fed. 549, See. TC^It. vs. O'Neill, 19i Fed. 567, See. 20. vs. Poulson, 30 Fed. 231, Sec. 137. VB. Powedl, 14 Wall. 493, Sec. 152. vs. Prescott, 3 How. .5'7S, Sec. 167. vs. Price, 9 How. 84, Sec. 119. vs. Quinn, 122 Fed. 65, Sec. 70. vs. Rogers, 28 Fed. 607', Sec. 146. vs. Ryder, 110 U. S. 7e9, Sec. 279. vs. Simmons, 47 Fed. 5'75, Sec. 279. vs. Thomas, 16 Wall. 337, Sec. 167. vs. Walker, 109 U. S. 258., Sec. 223. vs. Wallace, 46 Fed. 569, Sec. 228. vs. Walsh, 1151 Fed. mi, Sec. 76-a. United States Bank vs. Dandridge, 12 Wheat. 69, Sec. 173. U. S. Fidelity & Guaranty Co. vs. Amer. Blower Co., 41 Ind. App. 620, Sec. 76-a. vs. Charles, 131 Ala. 658, Sec. 16. vs. First Nat. Bank, (111.) 84 N. E. 679, Sec. 239. vs. First Nat. Bank, 233 111. 475, Sec. 239. vs. French Ins. Co., 212 Fed. «20, Sec. 233. vs. Golden Pressed Brick Co., 119 U. S. 416, Sec. 233. vs. Haggart, 163 Fed. 801, Sec 122. vs. McGinnis' Admr., 145 S. W. 1112, Sec. 262. vs. Omaha Bldg. & Cons. Co., 11© Fed. 145, Sec. 76-a. vs. Overstreet, 84 S. W. 764, Sec. 283. va. People, 159 lU. App. 36, Sec. 222. 630 TABIiE OP CASES. (lieferences are to sections.) U. S. Fidelity & Guaranty Co. vs. Peoples Baiik, 157 S. W. 414, Sec. 248. vs. Poetker, ISO Ind. 255, Sec. 146. vs. Russell, 141 Ky. 601, Sec. .218, 221. vs. State, 40 Ind. App. 136, Sec. 22*. vs. Union Trust & Sav. Bank, 142 Ala. 582, Sec. . vs. United States, 194 Fed. 611, Sec. 76-a. vs. United States, 178i Fed. €©2, Sec. 81. United States Glass Co. vs. Mathews, 8® Fed. 828i, Sec. 73. United States Mortgage Co. vs. Gross, 93 Illi 483, Sec. 255. United States vs. National Surety Co., 34 C. C. A. 526, See. 131. United States Surety Co. vs. American Fruit Co., 40 App. D. C. 230, Sec. 187- Updegraft vs. Edwards, 45- Iowa 5il3i, Sec. 2551 Uptmoor vs. Young, 57 Ark. 528, Sec. 260. Vail vs. Foster, 4 N. Y. 312, Sec. 272. Valentine vs. Donohoe-Kelly Banking Co., 133 Cal. 191, Sec. 71. vs. Wheeler, 116 Mass. 478, Sec. 123. Vanoe vs. Lancaster, 3 Haywood (Tenn.) 130, Sec. 283. Vanderford vs. Farmers & Mechanics Bank, 105 Md. 164, Sec. gil-a. Vandiver vs. PoUak, 107 Ala. 547, Sec. 274. Vanover vs. Thompson, 49 N. C. 48ff, Sec. 138. Vandyke vs. Weil, 18 Wis. 277, Sec. 186. Van Deusen vs. Hayward, 17 Wend. 67, See. 181. Van Doren vs. Tjader, 1 Nev. 360, Sec. 8i, 10. Van Patton & Marks vs. Beals & Hammer, 46 Iowa 62, Sec. 11. Van Pelt vs. Littler, 14 Cal. 194, Sec. 164. Vani Petten vs. Richardson, 68 Mo. 37», Sec. 283. Van Slyke vs. Bush, 123 N. Y. 47, Sec. 227. vs. Trempealeau Ina. Co., 39 Wis. 380, Sec. 14T. Van Valkenbergh vs. Smith, 60 Me. 97, Sec. 122. Van Wart vs. Carpenter, 21 Up. Can. (Q. B.) 320, Sec. 51. Van Winkle vs. Johnson, 11 Ore. 4C9, Sec. 271, 283. Vass vs. Riddick, 89 N. C. 6, Sec. l(5s, 109. Vaughan vs. HaUiday, 9' L. R. Ch. App. 561, Sec. 256. Vaughn vs. Smith, 65 Iowa 579', Sec. 41. Veach vs. Rice, 131 U. S. 293, Sec. 108. Vermeule vs. York Cliffs Improvement Co., 105 Me. 350, Sec. 280. Vert vs. Voss, 74 Ind. 566, Sec. 245. Vias vs. Comm., 7 Ky. L. Rep. 742, Sec. 231. Vickshurg Waterworks vs. Mayor of Vicksburg, 99 Miss. 132, Sec 197. Vidi vs. United Surety Co., 140 N. Y. S. 612, Sec. 71. Vielie vs. Osgood, 8 Barb. 130, Sec. 30, 122. Village of Chester vs. Leonard, 68 Conn. 496, Sec. 76>-a» ViUars vs. Palmer, 67' lU. 204^ Sec. 95. TABLE OF CASES. 631 (References are to sections.) Vinal vs. Richardson, 13 Alien 932, Sec. 67. Vincent vs. Logsdon, 17 Ore. 284, Sec. 251. Vindquest vs. Perky, 16 Neb. 284, Sec. 28. Vlinton vs. Mansfield, 4» Conn. 474, Sec. 215. Vinyard vs. Barnes, 124 111. 346, Sec. 17. Violett vs. Patton, 5' Cranch (U. S.) 142, Sec. 27. Virden vs. Ellsworth, 15' Ind. 144, Sec. 117. Vivian vs. State, 16 Tex. App. 262, Sec. 230. Vliet vs. WyckofF, 42i N. J. Eq. 642, Sec. 269. Vogel vs. Melms, 31 Wis. 306, Sec. 23. Vogelsang vs. Taylor, 80 S. W. 637, Sec. a3-a. Vo8s vs. German Bank, 83 lU. 5fl&, Sec. 101, i257. Vurpillat vs. Zehner, 2 Ind. App. 397, Sec. 205. W Wiaddelli vs. Bradway, 84 Ind. 587, Sec. 212. vs. Moore, 24 N. C. 261, See. 142. Wade vs. Staunton, 5 How. (Miss.) 631, Sec. 86. Wadsworth vs. Allen, 8 Gratt. 174, Sec. 66, 96. vs. O'Donnell, 7 Ky. L. Rep. 837, Sec. 198L vs. Smith, 431 Iowa 439, Sec. 49. Wagenseller vs. Prettyman, 7 111. App. 192, Sec. 2T1. Waggener vs. Dyer, 11 Leigh (Via.) 384, Sec. 114. Wagner vs. Stocking, 22 0. S. 297, Sec. 117. Wain vs. Warlters, 5' East. 21, Sec. 25, 26, 27. Wainwright vs. Straw, 15 Vt. 215, Sec. 37. Walker vs. Forbes, 25' Ala. 13», Sec. 66, 68. vs. Gregory, 36 Ala. 180, Sec. 138: vs. Holtzclaw, 57 S. C. 459, Sec. 236. vs. Pritchard, 34 111. App. 65, See. 193. vs. Richards, 41 N. H. 388, Sec. 36. vs. Simpson, 7 Watts. & Serg. 83, Sec. 259. vs. State, 176 Ind. 40, See. 17. Walker, Admr., vs. Lathrop, 6 Iowa 516, Sec. 284. Walker, In re., L. E., 1 Ch. 021 (18fli2'), Sec. 256. Walton vs. Beveling, 61 111. 201, See. 195. vs. Maseall, 13 M. & W. 452, See. 51, 67. Walden Nat. Bank vs. Birch, 130 N. Y. 221, Sec. 130. Wallace vs. Exchange Bank, 126 Ind. 265, Sec. 132. vs. Pinberg, 46 Tex. 35, Sec. 200. vs. Hudson, 37 Tex. 456, See. 112. vs. Insurance Co., 41 Fed. Rep. 742, Sec 238. vs. Jewell, 21 0. S. 163, Sec. TS. vs. York, 45 Iowa 81, Sec. 197. Wallis vs. DiHy, 7 Md. 23/7, Sec. 143. va. Keeney, 88 111. 370, Sec. 136. vs. Swinburne, 1 Welsh. H. & G. 203, Sec. 269. 632 TABLE OF CASES. (References are to sections.) Waller vs. Pittman, 1 N. C. 324, Sec. 182. Wallerstein vs. Admr. Surety Co., 15 N. Y. Supp. 954, Sec. 187. Waldrip vs. Black, 74 Cal. 409, Sec. 266i 282. Walz vs. Albaek, 37 Md. 404, Sec. 10. Walsh vs. Bailie, 10 Johns. 180, See. 52. vs. Miller, 51 0. S. 462, Sec. 114, 227. Walmesly vs. Booth, 27 Eng. Eep. Kept. 626, Sec. 145. Wapello vs. Bigham, 10 Iowa 39, Sec. 156. Wapello State Sav. Bank vs. Colton, 110 N. W. 450, Sec. 129. Ward vs. Chum, 18 Gratt. 801, Sec. 74, 109. vs. Hackett, 30 Minn. 150, Sec. 75', 109. vs. National Bank of New Zealand, & New Zealand, L. R., 10, Sec. 245. vs. National Surety Co., 152 S. W. 397, Sec. 105. vs. Stahl, 81 N. Y. 406, Sec. 163. va. Whitney, 8 N. Y. 442, Sec. 199. vs. Wick, 17 O. S. 150i See. 84. Ward, Appeal of, 100 Pa. 289, Sec. 249. Warder B. & G. Go. vs. Stewart, 36 Atl. 88', Sec. 122, Warren vs. Branch, 15' W. Via. 21, Sec. 15. vs. Dickson, 27 111. 115, Sec. 46. vs. Hayzlett, 45 Iowa 265, Sec. 244. vs. Louisville Tobacco Exchange, 55 S. W. 912^ Sec. 114v Warden vs. Eyan, 37 Mo. App. 466. Warner vs. Beardsley, & Wend. 19S, Sec. 116. vs. Benjamin. 89 Wis. 290, Sec. 110. vs. Cameron, 64 Mich. 185', Sec. 185'. VB. Morrison, 3 Allen 56C, Sec. 275'. vs. Willoughby, 60 Conn. 466, Sec. 41. Ware vs. Allen, 128 U. S. 590, Sec. 127. Warfield vs. Brand, 76 Ky. 77, Sec. 218. Wartman vs. Yost, 22 Gratt. 595., Sec. 117. Wash vs. Lackland, 8 Mo. App. 122, Sec. 19T. Washington vs. Hosp, 43i Kan. 324, Sec. 173. vs. Norwood, 128 Ala. 363, Sec. 2681. vs. Tait, 3 Hump. (Tenn.) 543, Sec. 115. Washington Oo. Ins. Co. vs. Colton, 26 Conn. 42, Sec. 134. Washington Ice Co. vs. Webster, 129 U. S. 426, Sec. 19, 214. vs. Webster, 62 Me. 341, Sec. 29. Waters vs. Melson, 112 N. C. 89', Sec. 163. vs. People, 4 Col. App. 97, Sec. 231. vs. Whittemore, 22 Barb. 503, Sec. 195. Waterbury vs. Andrews, 67 Mich. 281, Sec. 15, 105. Waterman vs. Clark, 76 111. 428, Sec. 117. vs. Dockray, 78 Me. 139, Sec. 223. vs. Vose, 43 Me. 504, Sec. 72. Watertown Fire Inh. Co. vs. Simmons, 131 Mass. 83, Sec 67, 107. Watertown Savings Bank vs. Mattoon, 78 Conn. 366, Sec. 108. TABLE OP CASES. 633 (References are to sec-jons.) Watkins Medical Co. vs. Brand, 14S Ky. 408, Sec. 66. vs. McCall, 116 Minn. 389, Sec. 66. Watts vs. Shuttleworth, 5 Hurl. & Nor. 235, Sec. 77, 98i. Watriss vs. Pierce, 32 N. H. 560, Sec. 77, 127. Watson vs. Hurt, 6. Gratt. 68S, Sec. 8, 10. vs. Jacobs, 29 Vt. 169, Sec. 38. vs. Johnson, 13' Ky. L. Rep. 336, Sec. 190. vs. Poague, 42. Iowa 682, See. 97. vs. Watson, 9 Conn. 140, Sec. 172. vs. Wilcox, 30 Wis. 643, Sec. 259. Waughop vs. Bartlett, 165 111. 124, Set 9S. Way vs. Butterworth, IPS Mass. 509. Sec. 8, 10, vs. Heam, 11 C. B. (N". S.) 774, Sec. 86. Wayman vs. Jones, 58 Mo. App. 313', See. 23. Waymire vs. Wayraire, 141 Ind. 164, Sec. 45'. Wayne vs. Bank, 52 Pa. 343., Sec. 106. vs. Commercial National Bank, 52 Pa. 343, Sea 14L Wayne Co. vs. Cardwell, 73 Ind. 5&5, Sec. 108. W. C. & A. Railroad Co. vs. Ling, 18 S. C. 116, Sec. 15. Weare vs. Sawyer, 44 N. H. 196, Sec. 11-a, 104. Weatherby vs. Shackleford, 37 Miss. 5S9', Sec. 196. Weaver vs. Prebster, 37 Ind. App. S'Sa, See. 82. vs. Shryock, 6 Serg. & R. 26*2, Sec. 69, 119, Webb vs. Anspaeh, 3' 0. S. 522, See. 163. vs. Dickenson, 11 Wend. 6i2, Sec. 96. vs. Gross, 79 Me. 224, Sec. 217. vs. Hawkins Lumber Co., 101 Ala. 630, Sec. 36. Webb Co. vs. Gonzales, 69 Tex. 455', Sec. 172. Webbe vs. Romona Oolitic Stone Co., 68 111. App. 226, See, SI', Weber vs. North, 51 Iowa 376, Sec. 217. vs. Roland, 39' Pa. Sup. Ct. 611, Sec. 122. Webber vs. Wilcox, 45 Cal. 301, Sec. 195. Webster vs. Washington Co., 26 Minn. 220, Sec. 173. Weed vs. Bentley, 6 Hill (N. Y.) 56', Sec. 19, 105. vs. Chambers, 40 Up. Can. (Q. B.) 1, Sec. 5B. Weed Sewing Machine Co. vs. .Jeudevine, 39 Mich. 590, See. 1231. vs. Max-well, 63 Mo. 486, Sec. 104, Wegner vs. State, 28 Tex. App. 419, Sec. 20, 229. Wehrung vs. Denham, 42 Ore. 386, Sec. 76-b. Wei-demeyer vs. Landon, 66 Mo. App. 520, Sec. 268. Weierhauser vs. Cole, 132 Iowa 14, Sec. 197. Weihe vs. Statham, 67 Cal. 84, Sec. 220. Weightmau vs. Union Trust Co., 208 Pa. 449, See. 131. Weir Plow Co. vs. Walmsly, 110 Ind. 242, Sec. 17, 5i5, 73. Weik vs. Pugh, 92 Ind. 38i2:, Sec. 96. Weinbrinner vs. Weisiger, 3 T. B. Mon. (Ky.) 35', See. 138L Weintz vs. Kramer, 44 La. Ann. 35', See. 171. 634 TABLE OP CASES. (References are to sections.) Weisel vs. Spenee, ."59 Wis. 301, Sec. 41. Weiss vs. Leichter, 113 N. Y. S. 999, Sec. 70. Welch vs. Seymour, 28 Conn. 387, Sec. 129, 1531. vs. Walsh, 177 Mass. 555, Sec. 67, 96. W«lsh vs. Ebersole, 75 Va. ©56, Sec. 6. Weldin vs. Porter, 4 Houst. 286, Sec. 27. Wells vs. Mann, 45 N". Y. 32/?, Sec. 116. vs. Miller, 66 X. Y. 265, Sec. 262. vs. Monihan, 129 N. Y. 161, See. 46. vs. State, 175 Ind. 380, Sec. 145. Wells, Fargo & Co. vs. Walker, 9 N. M. 456', Sec. 10& Wendlandt vs. Sohre, 37 Minn. 162, Sec. 9. Wertheimer vs, Howard, 30 Mo. 420, Sec. 169. Werner vs. Graley, 54 Kan. 383', Sec. 214. West vs. Bank, 19 Vt. 403, Sec. 262, 261. vs. Brison, 99 Mo. 684, Sec. 113. vs. Carter, 129 111. 249, Sec. 190. vs. Chasten, 12. Fla. 3J5, Sec. 23, 115w Westfall vs. Albert, 212 '111. 68, Sec. 135'. Westerman vs. Means, 12 Pa. 97, Sec. 135. Westbrook vs. Miller, 56 Mich. 148, Sec. 147. Western BIdg. & Loan Assn. vs. Fitzmaurice, 7 Mo. App. 28®, Sec. 133!. Western Maryland R. E. Co. vs. Blue Eidge Hotel Co., 102 Md. 307i Sec. 11. Western N. Y. Life Ins. Co. vs. Clinton, 66 N, Y. 326, Sec. 15'. Westervelt vs. Frost, 1 Abb. Pr. (N. Y.) 74, See. 139. vs. Mohrenstecher, 76 Fed. 118, Sec. 129. Westmorland vs. Westmorland, 92 Ga. 238, See. 133. Wesley Church vs. Moore, 10 Pa. 2i73, Sec. 261, 270. Wessel vs. Glenn, 108 Pa. 104, Sec. 109. Wetherwax vs. Paine, 2 Mich. 559, Sec. 10. Whan vs. Irwin, 27 La. Ann. 706, Sec. 188. Wheat vs. Dingle, 32 S. C. 473, Sec. 252. vs. Kendall, 6 N. H. 504, Sec. 90. Wheeler vs. Fuller, 4 Ala. App. 532, Sec. 188. vs. Hawkins, 116 Ind. 515, Sec. 24S. vs. Mayfield, 31 Tex. 396, Sec. 51. vs. McCabe, 47 How. Pr. (K Y.) 283, Sec. 184, vs. Meyer, 96 Mich. 36', Sec. 134. vs. Traders Deposit Bank, 107 Ky. 65», Sec. 1081. Wheeler & Wilson Mfg. Co. vs. Brown, 65 Wis. 99, Sec. 13a Wheeling vs. Black, 25 W. Va. 266, Sec. 160. Whereatt vs. Ellis, 103 Wis. 348, Sec. 126, 137, 186r. White vs. Banks, 21 Ala. 705, Sec. 2162. vs. Baugh, .? Clark & F. 44, Sec. 243-a. vs. Bowman, 78 Tenn. 55, Sec. 143. vs. Ditson, 140 Mass. 3Sil, Sec. 218. vs. Duggan, 140 Mass, 18, Sec. 20, 74, 109i. TABLE OF CASES. 635 (References are to sections.) White VS. East Saginaw, 43 Mich. 567, Sec. 162. vs. Howd, 66 Conn. 264, Sec. 180. vs. Miller, 47 Ind. 3SS, Sec.§80. vs. Reed, 15 Conn. 457; Sec. 18, 50, 60. vs. State, 44 Ala. 409, Sec. 147. vs. Walker, 31 lU. 422, Sec. 6S. vs. Weathefrbee, 126 Mass. 450, Sec. 19. White's, Adm. vs. Life Assn. of Amer., 63 Ala. 4S3', Sec. S. White's Bank vs. Myles, 73 N. y. ^, Sec. 50. White's Case, 6 Mod. 18, Sec. 146. White River L. & W. R. R. vs. Star R. & L. Co., 7T Ark. 12g, Sec. 7& White Sewing Machine Co. vs. Dakin, 86 Mich. 581, Sec. 133i vs. Hines, 61 Mich. 423, Sec. 53. vs. MuUins, 41 Mich. 330, Sec. 13a. vs. Saxon, 121 Ala. 3S&, Sec. 23-a. Whitehead vs. Cape Henry Syndicate, 111 Va. 193, Sec. 196. vs. Tulane, 11 La. Ann, 302, Sec. 19S'. Whiteside vs. Noyac Cottage Assn., 84 Hun 666', Sec. 197. Whitworth vs. Carter, 43 Miss. 61, Sec. 104. vs. Tilman, 40 Miss. 76, Sec. 283. Whitall-Tatum Co. vs. Manix, 113 N. Y. S. 1010, Sec. 48. Whittemore vs. Wentworth, 7'6 Me. 20, Sec. 3«.. Whitney vs. Groot, 24 Wend. 82, Sec. 59, 66. Whiton vs. Meaxs, 11 Met. 568., Sec. 67, 68. Whitcher vs. James Hall, 5 Barn. & Cr. 269, Sec. 73', 79(. Whitaker vs. Kirby, 54 Ga. 277, Sec. 113. vs. Richards, 134 Pa. St. 191, Sec. 11, 109. Whitsell vs. Mebane, 64 N. C. S^S-, Sec. 123. Whitfield vs. Evans, 3& Miss. 4«8, Sec. 220. Whitbeck vs. Ramsey's Estate, 74 111. App. 524, See. 24S, Whitridge vs. Durkee, 2 Md. Ch. 442, Sec. 115. Wiggins' Appeal, 100 Pa. 155, See. 104. Williams vs. Boyd, 76 Ind. 286, Sec. 23, 90. vs. Ewing, 31 Ark. 229, Sec. 273, 2716. vs. Fidelity & Deposit Co., 42 CoL 118^ See. 18a vs. Gilchrist, 11 N. H. 535i Sec. 97. vs. Gooch, 73 111. App. 567, Sec. 91. vs. Harrison, 11 S. C. 412, Sec. 11. vs. Kennedy, 1314 Ga. 33», Sec. 33. vs. Leper, S Burrows 1886, Sec. 39. vs. Morris, ^ U. S. 456', Sec. 29. vs. Morris, 9« Ark. 319', Sec. 109. vs. Morton, 38 Me. 47, See. 154. vs. Ogg & Keith Lumber Co., 42 Tex. Civ. App. SBS, See. US. vs. Owen, 13 Simons 507, Sec. 260. vs. Perkins, 21 Ark. 18, Sec. 16. vs. Riehl, 127 Cal. 366, Sec. 274. €36 TABLE OP CASES. (References are to sections.) Williams vs. St. L. I. M. & S. Ry., & Mo. App. 135, Sec. 215. VB. Tipton, 5 Humph. (Tenn.) 66, Sec. 280. WiUiamjSon vs. Hall, 1 O. S. 190, Sec. 194. vs. Rexroat, 55 111. App. 116, S«c. 41. vs. Woodman, 7'3 Me. 1«3, Sec. 19> Wills vs. Brown, 118' Mass. 137, Sec. 41. vs. Cutler, 61 N. H. 405, Sec. 39. vs. Ross, 77 Ind. 1, Sec. 17, 50. Willis vs. Chowning, 90 Tex. 617, Sec. 95. vs. Dftvis, 3 Minn. 17, Sec. 98. vs. Ellis, 98i Miss. 197, Sec. 28. vs. Willis, 42 W. Va. 522, Sec. 278^ Wilkinson vs. Conley, 13Si Ga. 518, Sec. llSi. vs. Evans, L. R., 1 C. P. 407, Sec. 29. vs. McKimmie, 36 App. D. C. 336, See. 73, 79. Wilkerson vs. Hood, 65 Mo. App. 491, Sec. 14. Willoughby vs. BaU, 18 Okl. 53&, Sec. 117. Wilkins vs. Aikin, 17 Ves. Jr. 422, Sec. 179. vs. Bank, 31 O. S. 56&, Sec. 117. vs. Carter, 84 Tex. 436i, Sec. 66. vs. Conley, 133 Ga. 518, Sec. 113. Wilcox vs. Campbell, 106 N. Y. 329, Sec. 23. vs. Draper, 12' Neb. 138i, See. 66. vs. Fairhaven Bank, 7 Allen 270, Sec. 96, 245. Wile va. Kock, 54 O. S. 608:, Sec. 18S. Wiley vs. Baumgardner, 97 Ind. 66, Sec. 138. Wilbur vs. Williams, 16 R. I. 242, Sec. 99. Willard vs. Wood, 135. U. S. 309, Sec 142. Wilcus vs. Kling, 87 III. 107, Sec. IBS. Wiles vs. Dudlow, L. R., 19 Eq. 198., Sec. 32, 269. Wild vs. How«, 74 Mo. 561, Sec. 8®. Wilds vs. Attix, 4 Del. Ch. 25», Sec. 115. ,Wilkes-Barre vs. Rockafellow, 171 Pa. 177, Sec. 160. Wilmington R. R. Co. vs. Ling, 18 S. C. 116, Sec. 107'. Wilson vs. Brown, 13i N. J. Eq. 277, Sec. 26& vs. Crawford, 47 Iowa 469, Sec. 280. vs. Glenn, 77 Ind. 585, Sec. 188i. vs. Hendee, 74 N. J. L. 640, Sec. 278. vs. Kite's Exr., 157' S. W. 41, Sec. 282. vs. Lloyd, 16 Law Rep. Eq. 60, Sec. 23. vs. McVey, 83 Ind. 108, Sec. 96. vs. Marsh, 34 Vt. 350, Sec. 169. vs. Monticello, 89 Ind. 10, Sec. 106. vs. Outlaw, Minor's Rep. 367, Sec. 19S. vs. People, 19 Ool. 199, Sec. 166. vs. Root, 43 Ind. 486, Sec. 208. vs. Spencer, 91 Neb. 169, Sec. 160. TABLE OF CASES. 637 (References are to sections.) Wilson vs. State, 67 Kas. 44, Sec. 163. vs. Stewart, 24 0. S. 604, Sec. 274. vs. White, 92 Ark. 407, Sec. 96. vs. Whitmore, 92 Hun 466, Sec. 131. vs. Wichita Co., 67' Tex. 647, Sec. 160, 166. vs. Waison, 17 0. S. 150, See. 222. Willson vs. McEvoy, 2& Cal. \6», See. 187. Windhorst vs. Bergendahl, 21 S. D. 2I1S, Sec. 83. Winter & Co. vs. Forrest, 149 Ky. 581, See. lOS. Winn vs. Albert, 2 Md. Ch. Dec. 169, Sec. 46. vs. Samford, 146' Mass. 302, Sec. 11-a, 104. Winnebago Paper Mills vs. Travis, 50 Minn. 480, Sec. G©. Winsted Bank vs. Webb, 39 N. Y. 325, Sec. 97. Winston vs. Yeargin, 50 Ala. 340, Sec. 9», 257'. Winslow vs. Wood, 70 N. C. 430, Sec. 126. Wingate vs. Waite, 6 M. & W. 739i, Sec. 168. Winchester vs. Beardin, 10 Humph. (Tenn.) 247, Sec. 254. Winship vs. Baas, 12 Mass. 199, Sec. 218. Wise vs. Miller, 46 0. S. 388, Sec. 66. Wiser vs. Blaehly, 1 Johns. Ch. 607, Sec. 17. Wiseman vs. Lynn, 30 Ind. 250, Sec. 212. vs. Swain, 114 S. W. 145, Sec. 218i, 221. vs. Thompson, 94 Iowa 607, Sec. 46. Withers vs. Berry, 2& Kan. 373, Sec. 67. Witkowski vs. Hern, 82 Cal. 604, Sec. 159. Witmer vs. Ellison, 71 111. 301, Sec. S3'. Witt Shoe Co. vs. Peacock, 150 N. C. 549, Sec. 50. Wittich vs. O'Neal, 22 Fla. 592, Sec. 197. Wolf vs. Aetna Indemnity Co., 163 Cal. 597, See. 76-a. vs. Des Moines & Ft. Dodge Ry. Co., 64 Iowa 360, Sec. 135. vs. Stix, 90 U. S. 1, Sec. 100. Wolfe vs. McClure, 79 111. 564, Sec. 13&. Wolmershausen vs. GuUick, L. E., 2 Ch. Div. 914 (1803), Sec. 270, 277. Wolters vs. Henningsan, 114 Cal. 43®, Sec. 266. Wolverton vs. Davia, 85 Va. 64, Sec. 265. Wiolstenholme vs. Smith, 34 Utah 300, Sec. ftl-a. Womack vs. Paxton, 84 Va. 9, See. 115. Wood vs. Brown, 104 Fed. 203, See. 98.. vs. Ooman, 56 Ala. 289, Sec. 212. vs. Oomm., US S. W. (Ky.) 729, Sec. 232. vs. Chetwood, 44 N. J. Bq. 64, Sec. 121, 123. vs. Farmer, 200 Mass. 209', Sec. '68'. vs. Famell, 50 Ala. 546, Sec. 169. vs. Fisk, 63 N. Y. ■246., Sec. 69. vs. Fulton, 2 Harr. & G. (Md.) Tl, Sec. 18& vs. Hollander, 84 Tex. 384, Sec. 196. vs. Leland, 1 Met. 38.7, Sec. 279. 638 TABLE OP CASES. (References are to sections.) Wood vs. Midgley, 5 De G. M. & 6. 41, Sec. 29. vs. Newkirk, ]5 0. S. 295, Sec. 88. vs. Oriord, 56 Cal. 157, Sec. 185. vs. Priestner, L. R., 2 Ex. 66, Sec. 59. vs. State, 66 Md. 61, Sec. 196. vs. Steele, 6 Wall. 80, Sec. 73. Wood, In re, 1 DeG. J. & S. 465', Sec. 269. Woods vs. Sherman, 71 Pa. 100, Sec. 68. vs. State, 51 Tex. Cr. Rep. 595, Sec. 231, 238. Woodstock Bank vs. Downer, 27 Vt. 530, Sec. 61, 66. Woodburn vs. Carter, 50 Ind. »76, Sec. 8S. Woodward vs. Paine, 15 Johns. 493, Sec. 168. vs. Pell, L. R., 4 Q. B. 56, Sec. 251. Woodhouse vs. Shepley, 2 Atk. 536, Sec. 138. Woodman vs. Mooring, 3 Dev. Law (N. C.) 237, Sec. 1^ Woodruff vs. Scaife, 83 Ala. 152, See. 40. vs. Schultz, 156 Mich. 11, Sec. 76-a. Wooddell vs. BrufFy, 25' W. Va. 465, Sec. 157. Woolfolk vs. Plant, 46 Ga. 422, Sec. 84. vs. State, 10 Ind. 6S2, See. 282. Wooldridge vs. Norris, L. R., 6 Eq. Cases 410; Sec. 119, 28a. Worden vs. Klag, 13 Ohio 'C. C. 627, Sec. 192i Worcester Mechanics Sav. Bank vs. Hill, 113 Mass. 25i, See. 18, 57. Work vs. Cowhiek, 81 111. 317, Sec. 29. WorraU vs. Munn, 5 N. Y. 22&, Sec. 30. Worth vs. Cox, 86' N. C. 44, Sec. 87. Worthy vs. Barrett, 6» N. C. 199, See. 145. vs. Brower, 93 N. C. 344, Sec. 21T. Wormley vs. Woxmley, 96 lU. 129, Sec. IS'l. Wormer vs. "Waterloo Agriciiltural Works, 62 Iowa 699, Sec 258. Wren vs. Pearce, 4 Smed. & M. 91, Sec. 27. Wright vs. Dannah, 2 Camp. 203, Sec. 22. vs. Deaver, se Tex. Civ. App. 130, Sec. 81. vs. Dyer, 4)8- Mo. 6i2'5i Sec. 67. vs. Griffith, lai Ind. 478, Sec. 59, 66. vs. Keyes, 103 Pa. S67, Sec. 19&, 201. vs. Knepper, 1 Barr. (Pa.) 361, Sec. 100. vs. Lang, 66 Ala. 389, Sec. 318. vs. Marvin, 5& Vt. 437, Sec. 212. vs. Morley, 11 Ves. 22, Sec. 2156. vs. Morse, '9 Gray 337, Sec. 8. vs. Russel, 2 W. Bl. 934, Sec. 52. vs. Shorter, 56 Ga. 72, Sec. 67. vs. State, 79 Ala. 2162, Sec. 40. vs. Stockton, 5 Leigh -(Via.) 153, Sec. lU, Wronkow vs. Oakley, 133 N. Y. 505, Sec. 189. Wulff vs. Jay, 7 L. R. Q. B. 756, Sec. 99, 257. TABLE OF CASES. 639 (References are to sections.) Wurtz vs. Hart/13 Iowa 513, Sec. 262. W. U. Tel. Co. vs. C. P. R. R. Co., 86 111. 246, See. 2S. Wyatt vs. Dufrene, 106 111. App. 214, Sec. 88., 90. Wybrants vs. Luteh, 24 Tex. 309, Sec. 91. Wyman vs. Goodrich, 2l6i Wis. 21, Sec. 43. vs. Robinson, 7® Me. 384, Sec. 217'. Wyrni vs. Brooke, 5 Ravrle (Pa.) 106, Sec. 283. vs. Wood, 97 Pa. 216, Sec. 43. X Xander vs. Commonwealth, 102 Pa. 434, Sec. 133!. Yager vs. Kentucky Title Co., 112 Ky. 932, Sec. 00. Yale vs. Baum, 70 Miss. 225, Sec. 198. Yancey vs. Brown, 3 Sneed S&, Sec. 66. Yarbrough vs. Comm., 8i9' Ky. 151, Sec. 232. Yates vs. Bureh, 87 N. Y. 409, See. 188. vs. Mead, 68 Miss. 787, Sec. 251. Yazoo & M. V. R. R. Co. vs. Adams, 78 Miss. 9'77, Sec. 193. Yeary vs. Smith, 46 Tex. 56, Sec. 81. Yerby vs. Grigsby, 9 Leigh 387, Sec. 30. Yerxa vs. Ruthruff, 19 N. D. 13, Sec. 96. Yoder vs. Bi-iggs, 3 Bibb (Ky.) 228, See. 279. Y. M. C. A. vs. Ritter, 90 Kas. 383, Sec. 9». Yorkshire Ry. Wagon Co. vs. Maclure, L. R., 19 Ch. 47», Sec. 104. Young vs. American Bonding Co., 228 Pa. 373, Sec. 73, 76-a. vs. Brown, 53 Wis. 38®, Sec. 59. vs. Duhme, 61 Ky. 239, Sec. 220. vs. Lyons, 8 GiU. (Md.) 16i2, Sec. 273. vs. Morgan, m III. 199,. Sec. 259. vs. Shunk, 30 Minn. 503, Sec. 268'. vs. State, 7 Gill. & Johns. (Md.) 253, See. 148, vs. Vough, 23 N. J. Eq. 325, Sec. 244. Young, Admr., vs. Patterson, 16a Pa. 423, Sec. 1*2. Youngs vs. McDonald, 67 N. Y. S. 375, See. 197. Zane vs. Kennedy, 73 Pa. 188, Sec. 82. Zechman vs. Haak, 86 Wis. 6616, Sec. 199. Zeigler vs. Henry, 77' Mich. 4180, See. 188. Ziegler vs. Hallahan, 131 Fed. 210, Sec. 7e-a, 79. ZoUickoffer vs. Seth, 44 Md. 360, Sec. 273, 280. INDEX (The references are to pages.) A Absence From Jnrisdiction — as affecting right of contribution between co-sureties, 490. Absolute Gnaranty— defined, 73. distinguisibed from guaranty of collectibility, 6n. not necessary to pursue and exhaust the principal before proceed- ing 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, 194. retention of bond by obligee prima fade e^^idence of acceptance, 194. view that accommodation acceptor is entitled by subrogation if* securities in the hands of the holder, 449n. Notice of acceptance of guwranty, 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, 80. 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 front 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 accident, 206. mutilation of bond by accident, not a. defense to sureties, 253. Accommodation Indorser default of principal, not an extension of time, 115. payjnent of legal rate of interest in advance, an adequate consider- ation for an extension, 117. confiieting views as to whether a promise to pay legal rate of in- terest is a consideration for an extension of time, 117, 118. payment of usurious interest in advance as a consideration for an extension, 11 7n, 118. promise to pay a higher rate of interest than the legal rate and not tainted with usury, a good consideration for extension, 118. the execution of a note for usurious interest, a good consideration for an extension, 118n. extensioii of time as a defense under the negotiable instrument code, 128. agreement for extension must be for a definite time, 119. execution and delivery of a new note payable at a later date extends the time of original obligation, 119. giving note for past due obligation, not an extension of original ■debt, 120. giving collateral securities maturing at a later date does not oper^ ate to extend the time on the debt, 120. giving collateral, a good consideration for an agreement to extend, 121. agreement for extension may be shown by parol, 121. promisor discharged by extension of time resulting from act of Legislature, 121, 256. giving time to surety, effect upon co-surety, 122, 172. persons in the situation of a surety, discharged by extension of time, 124. appeal of continuance of judicial proceedings not an "extension of time," 127. reserving rights against promisor, 128b. distinguished from agreement not to sue, 129. waiver of the defense of extension, 130. P Failure of Consideration^ failure of consideration of the principal contract as a defense to the promisor, 148. failure of consideration may be shown by parol, 166. 672 INDEX. (The references are to pages.) Tailnre of Consideration— Continited! — burden of proving a failure of consideration is upon the one wW makes the claim, 199. of the main contract, as a defense to the promisor's right of in- demnity, 515. Favorite of the I(See Attachment)— Fraud (See Statute of Frauds)— will stvoid suretyship contract, 2, 13, 14, 148. practiced by the creditor upon the principal will discharge the promisor, 13, 14, 148. fraud of the creditor, or of the principal with knowledge of the creditor against the promisor will discharge the promisor, 13, 150, 200. withholding information from the promisor known to the creditor, materially affecting the risk, held to amount to fraud, 14, 201. concealment of previous misconduct of principal occupying position of trust is constructive fraud, 14, 201. creditor not bound to disclose facts which promisor with diligence might have ascertained, 15n. practiced by principal on the promisor without knowledge of the creditor, will not discharge the promisor, 15, 158. promisor liable, although fraudulently induced to sign while intox- icated, 15n. promisor not estopped from denying recitals of the contract inserted by fraud, 20. if suretyship is induced by fraud, equity will reform the contract, 18. secret stipulations between creditor and principal affecting char- acter of main contract, a fraud upon the promisor, 150. INDEX. 673 (The references are to pag^es.) I'ToaA— Continued — concealment without intent to deceive is fraudulent, if facts con- cealed are material, 152. fraud will not be imputed because the creditor by reason of inat. tention to his own affairs does not know of facts materially affecting risk of promisor, 154, 157. fraud can not be predicated upon a promise, only present or past transactions the subject of misrepresentation, 162. conflicting views as to whether a fraudulent concealment by the principal of default prevents the operation of the statute of limitations as to the surety, 228. Frandnlent Conrreyanoe-* surety paying, may maintain action to set aside conveyance in right of creditor, 438. right of surety to set aside conveyance dates from the execution of the suretyship contract, 438n, 507. surety may have equitable contribution enforced before payment where co-surety makes fraudulent conveyance of his property, 489. Frandnlent Inteni>- alterations of suretyship contract as affected by absence of fraud- ulent intent, 104. promise to do am aict without any intent of performance, not fraud- ulent, 162. Gambling Debt- surety paying, can not charge the principal in action for indemnity, 515. General Guaranty^ may be enforced by any one to whoin it is presented, who acts upon it, 63. a general guaranty is assignable, 63. Giving Time (See Extension of Time)— Grantor— of land svfbject to mortgage, in the situation of a surety, 448. • Gnarantor>- defined, 5. distinguished from surety, 5, 6n. entitled to notice, 6. irregular indorser presumed to be guarantor, 8n. irregular indorsement aft*r delivery generally results in the con. tract of a guarantor, 9, 10. guarantor bound, although principal has no knowledge of the guar- anty, 67. not necessary that the guarantor derive any benefit from the con- tract, 68. entitled to notice of default in certain cases, 6, 86, 89, 91. when notice of acceptance of guaranty necessary to charge the guar- antor, 77. when a guarantor is entitled to notice of advancementai made under the guaranty, 78. alterations of main contract reducing or enlarging amount to be advanced by the creditor will release guarantor, 108. 674 INDEX. (The references are to pages.) Guaranty (See Commercial Crnaranties) — a. subdivision of suretyship, 2. differs from the contract of the surety, 2, 5, 6n. guaranty of collectibility distinguished from a guaranty of pay- ment, 6n, 74. guaranty of a note of a third party given in payment of a debt, not a suretyship contract and need not be in writing, 49. general guaranty may be enforced by any one to whom it is ad- dressed, who acts upon it, 63. gieneral guaranty held not equivalent to an indorsement, 63, 64. special guaranty, 64. retrospective guaranties, 66. continuing guaranties, 70. guaranty of collectibility, 74. notice of acceptance of guaranty — rule in the State and Federal courts compared, 77, 80, 83. notice to guarantor of default of principal, 86. revocation of guaranty, 94. death of guarantor as a revocation of guaranty, 95. Gnardian — •stipulates by legal implication that he is capable of managing the affairs of his ward, 386. liable for all property of the ward coming *o his possession whether derived from estate of ancestor or other sources, 387. liable on his bond for loans made upon insufficient security, 387. bond to guardian in representative capacity may be sued upon in his individual' or official capacity, 232. Scope of liability upon bond. sureties liable for money received before the execution of bond, 387. conversions before execution of bond considered liability against sureties, 387. special bond to secure land sale prooeeds, not cumulative with general bond, 387. debts due the ward by guardian become assets for which the bond is liable, 388. money paid guardian after ward attains majority, not a charge on the bond, 388. conversions after majority, of money received during minority, a charge upon the bond, 388. failure to make settlement as soon as ward reaches majority, a breach of bond, 388. release by the ward, when the full amount has not been paid, pre- sumed to be fraudulent, 388. settlement .made upon misrepresentation may be repudiated and sureties held, 389. acceptance by ward of the note of guardian, a defense to the surer ties, 389. sureties liable for amount receipted for, where guardian oecupiea position of double trust, 389. adjudication against guardian conclusive against sureties, 389. settlement procured by fraud not conclusive, 390. H Habeas Corpus — duty -of granting writ is ministerial, 292. Holding Over — sureties of officer who holds' over without bond, liable for conver- sions in seconH term, 261. INDEX. 675 (The references are to pages.) Ignorance of Lair— when facts are known, ignorance of legal effect is voluntary and not a defense, 130. Illegal Acts — as a consideration, will avoid contract, 16. Illegal 'Contract- promisor in suretyship not estopped from denying the legality of the main contract, 20. undertakings for indemnity against illegal contracts are void, 224. Implication- obligations in suretyship can not be created by, 2, 17, 24. holder of incomplete suretyship contract who receives it from the promisor is authorized by implication to fill up the instrument, 21, 102, 195. implied agency does not reach the amount of the penalty and such blanks can not be filled except by express authority, 161. holder of suretyship contract fully written, has no implied author- .ity to make alterations, 102, 103. acceptance of note by creditor payable at a later date, raise im- plied agreement to extend time to maturity of note, 119. giving collateral maturing at a later date, does not imply a con- tract of extension, 120. Implied Contract— the equity of contribution between co-suretiee not founded upon implied contract, 474. practical distinction between actions upon implied contract and ac- tions arising from equitable basis, 477, 500. no contract of indeifinity implied in favor of surety upon bail bond, 504. of indemnity, applies only in favor of the one whose debt is paid, and not in favor of others receiving benefit from the payment, 505, no promise of indemnity implied where promisor signs without re- quest of principal, 506. Imprisonment— of principal in penitentiary for another offense while out on bail will not exonerate his sureties, 399. Incompleted Contracts of Suretyship^ not binding upon the promisor unless completed by his authority, 21. delivery by the promisor of an incompleted instrument authorizes the holder, by implication, to fill in all blanks, 21, 195. if penalty is left blank it can not be supplied without express assent, 22, 161. if promisor authorizes the principal to fill in such words as will ex- press the understanding of the parties, the contract will be binding, even though when completed it enlarges the liability intended, 22, 161. promisor who signs with knowledge that the contract is incomplete, will be bound, 150. clerical omissions of words necessary to complete the sense, supplied by construction, 344. Incorporation— of obligees, held a discharge of the sureties upon bond^ 113. Increase of Salary^ will not release surety upon bond, 214, 255. 676 INDEX. (The references are to pages.) Indemnity- giving time, not a defense to the surety if promisor is fully indem- nified, 123. surety who haai indemnity, a trustee for his co-surety, 453, 491. indemnity in the hands of surety inures to the benefit of co-sureties who make their contract at a later period, 492. Bonds of general indemnity. scope of indemnity undertaking, 206. contract of indemnity defined, 37. contract of indemnity not within the statute of frauds, 37. bond to sheriff to prevent performance of duty does not bind surety, 225. bond to public ofScer to indemnify against consequences of an un- lawful act already committed, is valid, 226. Promisor's right against principal, 503. rests upon implied contract, 503. no implied contract in favor of surety upon a bail bond, 504. no indemnity implied if consideration for suretyship is illegal, 505. indemnity not implied, except against the one whose debt is can- celed, 505. surety signing without request of principal has no implied right of indemnity, 506. indemnity may be recovered, although surety pays upon a verbal promise of suretyship, 506. when the right arises, 507. not necessary for promisor to pay entire debt, indemnity may be enforced upon part payment, 507. cause of action for indemnity can not arise before maturity of the the debt, 508. equitable exoneration of promisor before payment, 508. acceptance by creditor of negotiable note of promisor amounts to payment and gives rise to action for indemnity, 509. view that acceptance of non-negotiable obligation does not consti- tute cause of action for indemnity, 510. amount recoverable by action for indemnity, 511. costs of litigation recoverable, 512. promisor can not recover more than the actual amount paid, 512. costs of execution against promisor not recoverable, 513. damages resulting indirectly from the suretyship', not subject ol indemnity, 513. as to whether promisor can recover indemnity where payment is made upon claims for which the principal is not liable, 513. if promisor is liable to the creditor he may recover his indemnity from the principal, although creditor's right against principal is barred, 514. if principal might have defended on account of failure of consider- ation, the promisor who voluntarily pays can not recover in- demnity, 515. where principal debt rests upon an illegal consideration, promisor can not recover indemnity, 515. as aflFected by want of contractual capacity in the principal, '515. as affected by the non-liability of surety or guarantor, 515. accommodation indorser may waive notice and demand without imv pairing his right of indemnity, 516. same rule as to statute of limitations, 516. when judgment against promisor is conclusive against principal, 517, as affected by the bankruptcy of the principal, 517. liability for indemnity is a provable debt in bankruptcy, 518. iNPEX. 677 (The references are to pages.) rzidictment^ where bail bond describes one offense and indictment a different offense, the bail is invalidated, 306. no defense to sureties upon bail bond that no indictment was ren- dered against accused, 396. Indorser^ defined, 7. irregular or anomalous indorser, 7. irregular indorser who signs, not to give the maker credit with the payee, but to enable the maker or payee to discount the paper with a third party, held as regular indorser, 8, 9. release of a, prior indorser by holder, discharges all intermediate indorsers, 144. if there are several intervening indorsers each one is a promisor in suretyship, 448. blank indorsement, before delivery, of note payable to the order of the maker creates contract of regular mdorser, 11. surety who stays execution upon judgment upon promissory notci not subrogated by payment to rights of holder against indorser, 432. if indorser pays he may be subrogated to right of holder upon bond to stay execution, 432. subrogated to holder's right of execution, 448. subrogated to rights of holder upon mortgage security, 448. successive accommodation indorsers, not entitled to contribution, 486, 501. Indorsee^ subrogated to securities held by indorser, 462. takes securities by subrogation subject to all prior equities whether transfer before or after maturity, 463. Infancy- incapacitates party from making a binding contract in suretyship, 12a. contract by infant is voidable, 12a. contract by infant becomes valid only when ratified by him after becoming of age, 12a. if substituted contract is void by reason of infancy of maker the creditor will be restored to all his rights under the original contract, 137. the defense of infancy can only be set up by the infant, 149. one advancing. money to infant for the purchase of necessaries, sub- rogated to the position of one who furnishes necessaries to in-, fant, 469n. Initials— if memorandum required by the statute of frauds is signed by the initials of the party to be charged it will be sufficient, 36. Injunction^ generally inoperative without bond, 337. court of equity will require bond when not provided for by statute, 338. without bond, a party against whom an injunction wrongfully issues, can not recover damages, 339. Actions upon injunction bonds, 339. no action accrues upon injunction bond until determined by judg- ment of court that injunction was wrongful, 339. 678 INDEX. (The references are to pages.) Injimctitau— Continued — dismissal of action witliout prejudice for want of service, not a breach of injunction bond, 339. dismissal of action by court for want of prosecution constitutes a breach, 340. voluntary dismissal by plaintiff a breach of the bond, 340. dismissal by agreement of parties releases sureties, 340. where dissolution of injunction is based upon facts arising after allowance of the writ, no liability on the bond, 340. dissolution of injunction on account of death of the defendant, not a breach, 341. restraining order not necessarily wrongful even though final injunc- tion refused, 341n. dissolution for insufBcient bond constitutes a breach, 342. submission to arbitration resulting in dissolution of injunction releases sureties upon the bond, 342. dissolution as to part of the relief prayed for, not a breach, 343. no action arises upon dissolution of a temporary restraining order until final determination of the cause, 343. dissolution of injunction in appellate court renders the bond liajjle although made permanent in the lower court, 346. disobedience of injunction no defense to the bond, 346. Construction of injunction ionds, 343. will be strictly construed, 343. bond given after injunction has issued, without consideration, 343. if penalty exceeds requirements of the statute, imperative as to the excess, 343. parol evidence not competent to remedy defects in the form of the ■ bond, 343. eureties not estopped by recitals in the bond from showing that the injunction did not issue, 344. references in injunction bonds to records, make such record a part of the bond, 344. terms- of the bond not enlarged by order of court dissolving the in-- junction, 343. Defenses of sureties upon bond, 344. sureties estopped from showing the court had no jurisdiction to issue the writ, 344. where the writ is directed against the doing of an act which the defendant never intended to do, 345. no defense that an injunction was sustained in another action in- volving the same issues, 345. Measure of damages for breach of bond. 346. damages limited to such a flow directly from the injunction, 346. loss of profits from interruption of defendant's business, not rei coverable, 346. loss of profits of business which are ascertainable with reasonable certainty, recoverable, 347. depreciation of property 'withdrawn from the market by the in- junction may be recovered, 347. where money is detained, interest is recoverable, 347. loss of time and wages, 347. credits barred by statute of limitations pending the injunction, proper subject of damages, 348. mental strain and anxiety, not a subject of damages, 348. value of the use and occupation of land as an element of damages, 348. time of defendant in procuring dissolution of injunction, not an ele- ment of damage, 348. INDEX. 679 (The references are to pages.) Injanctiomi — Catitmiiee^ — all necessary disbursements in procuring dissolution, including at. torney fees, recoverable, 348. expenses incurrred in an unsuccessful attempt to dissolve injunction not recoverable, even thougli on final hearing the injunction is dissolved, 348a, 348b. counsel fees not recoverable in the Federal court, 348a. attorney fees contracted for, but not paid, recoverable, 348b. if injunction is incident to some other relief and dissolved on final jfiearing, attorney fees not recoverable, 348b. attorney fees in modifying an order of injunction, not a liability upon the bond, 349. services of counsel in resisting an allowance of an injunction, not recoverable, 350. where no motion is made to dissolve injunction until final hearing no recovery for counsel fees, 349. services in appellate court recoverable, 350. Insanity- insane person can not bind himself as a promisor in suretyship, 12a. if principal is insane at the time of the execution of the main con- tract, such defense is not available to the promisor, 149. if principal incapacitated by insanity after execution of contract and before default, held a defense to the promisor, 149. surety upon bail bond exonerated. If principal is adjudged u, luna- tic and confined in an asylum, 400. Insolvency— in a guaranty of collectibility the burden is on the creditor to est tablish the insolvency of the principal, 77. creditor not bound to notify promisor of the insolvency of the prin- cipal, 156. if creditor is insolvent the right of equitable set off against the creditor in the right of the principal accrues to promisor, 180. of one Or more co-sureties, effect as to right of contribution, 490. Installments- surety paying debt .by installments may maintain action for indemi nity upon each payment, 507. Insurance—' compared with corporate suretyship", *409v Insurance Interest — as known to insurance has no necessary relation to suretyship, 423. Intention- alterations of suretyship contracts as affected by absence of fraud- ulent intent, 104. promise to do an act without intent of performance, not fraudulent, 162. Interest- promisor in suretyship, liable for interest upon the debt, 93. payment of legal rate of interest in advance, a consideration, for ex- tension of time, 117. view that a promise to pay legal rate of interest is a consideration for extension, 117. payment of usurious interest in advance as a consideration for ex- tension of time, 117n, 118. the execution of a note for usurious interest in advance, an ade< quate consideration for an extension of time, 118n. 680 INDEX. (The references are to pages.) Interest — 0- defined, 7. irregular indorsement creates only liability of regular indorser in certain jurisdictions, 7, 10. irregular indorsement purports no contract in certain jurisdictions, lln. held surety, guarantor, or indorser, depending on special cojitract made, 7. when liable only as second indorser, 9, 10. liability as regelated by statute, lOn. Presumption of liability incurred, 7, 8n, 10. presumed to be surety, 8n. presumed to be guarantor, 8n. signing to enable the maker or payee to discount the paper with a. third party, presumed to be liable as regular indorser, 8, 9. Signinff before or after delivery, effect upon liahitity, 9. jurisdictions in which anomalous indorser signing before delivery held liable to payee^ 11. INDEX. 681 (The references are to pages.) Joinder of Parties Plaintiff- all persons for whose benefit a bond is made must be joined in an action for the breach of it, 233. Joint Actions — only joint actions could be brought 'at common law to enforce joint liability, 180. Joint Control of Trust Funds, 424. Joint Liability— if promisor is jointly liable for the debt with the principal his con- tract to pay is not within the statute of frauds, 43. one may be a joint obligor as to the creditor and an accommodation party as to the debtor, 43. guaranty regarded as a joint obligation unless there are express words indicating a several liability, 92. judgment against one joint obligor bars action against the other, 92. the estate of a deceased joint guarantor not liable at common law, 92, 185. statutes abrogating the common law as to non-liability of estate of deceased joint obligor, 187. at common law only joint action could be brought to enforce a joint liability, 180. subrogation between persons jointly liable, 449. Joint Obligors — if bond is joint and several, any one or more joint obligors may be made defendants in the same action, 234. sureties upon successive bonds may be joined as defendants in one action, 234. Judicial Acts- approval of official bonds held a judicial act, 247. the act of passing upon the fitness of a person appointed by the court to public service is judicial, 292. granting of bail a judicial act, 391. Judicial Bonds— Application of suretyship to legal remedies, 308. indemnity as a condition of legal action, an anomaly, 308. necessity for judicial bonds, 309. at common law a writ of error operated as supersedeas, 309. acts of Parliament requiring security in certain cases, 309. Federal judiciary act as to bonds in stay of execution, 310. State statutes as to same, 310. origin of injunction bonds, 311. Statutory requirements as to appeal or stay bonds, 314. limitation of time for filing, 314, 337. • requirements for approval, 314. failure to approve bond not a defense to sureties, 314n. dismissal of judicial proceedings for failure to comply with the law, 314. justification of sureties, 315. giving bond for smaller sum than is required by law, 315. giving bond for larger sum than is required by law, 316, 343. statutory provisions as to residence of surety, 316. persons prohibited by law or rules of court from becoming surety, 317. 682 INDEX. (The references are to pages.) Judicial Bonds — Continued — fixing penalty of bond by the court, 317. regulation by statute as to the number of sureties, 317. waiver of defects by acts of obligee, 320. Consideration, 318. giving of bond for which there is no requirement of law renders bond void for want of consideration, 318. bond by administrator in appeal who is exempt by reason of having given administration bond, without consideration, 318. supersedeas bond void for want of consideration if former appeal operates as stay of execution, 318. where judgment appealed from is a nullity by reason of want of jurisdiction, bond is wanting in consideration, 318. Material defects in form of bonds, 317. distinction between defects which invalidate the bond and those which merely furnish grounds for dismissal of action, 317. bonds lacking formalities of contract can not be enforced, 317, 368. omission of defeasance clause, 318. omission of name of judgment creditor, 318. reciting the name of an appellate court which has no existence, 319. exacting more onerous conditions than the law requires, 319. parol evidence not admissible to remedy defects, 343. Appeal or stay bonds, 312. distinction between stay of execution and appeal, 312. use of the term appeal interchangeably with supersedeas, 312. instances where appeal bond vacates the judgment, 312. want of jurisdiction in the appellate court resulting in dismissal creates no liability on the bond, 321, 324. perfecting appeal by consent of obligee after the date limited by law, 321. obligors estopped by recitals in the bond that appeal has been per- fected from claiming otherwise, 321. failure to make all parties in the lower court parties in the re- viewing court, 321. conditions upon which appeal or stay bonds become payable, 322. aflSrmance as to one or more of the parties and reversal as to others constitutes a breach of the bond, 323. addition of new party in the appellate court, 324. when action may be brought upon bond for appeal, 327. effect of levy of execution against principal upon right of action against surety, 327. not necessary to first make demand upon principal before proceed- ing against surety, 328. not necessary for obligee to fi.'-st resort to other security before proi ceeding against surety, 328. summary action upon appeal or stay bonds, 328. measure of damages in action upon appeal Or stay bonds, 329. successive appeal bonds, 334. defenses in actions upon appeal or stay bonds, 335. all issuable facts necessary to the validity of the judgment are set- tled by aiBrmance of the judgment, 335. sureties not estopped from sliowing fraud and collusion in obtain- ing the judgment appealed from, 336. want of jurisdiction in appellate court not a defense to sureties where judgment has been afiirmed, 336. where appeal is entertained and judgment affirmed, sureties, es- topped from showing the appeal not perfected, 336. appeal from a justice court, 336. INDEX. 683 (The references are to pages.}' Judicial Bonds — Chntmued — Failure to prosecute appeal, 324. dismissal of appeal for want of prosecution a constructive affirm- ance, 324. dismissal of appeal for want of jurisdiction not a constructive affirmance, 324. where appellant is restrained by injunction from prosecuting ap- peal, 325. removal of cases by act of legislature to new appellate court not named in the bond, 325. affirmance by consent of parties not a breach of appeal bond, 325. agreement that action may abide the outcome of a»test case is not a compromise, 326. where appeal has been dismissed and thereafter reinstated by agree- ment of parties, 327. want of capacity to prosecute appeal is a breach of the bond, 327. Administration hands, 375. distinction between bonds of officers of the court and public offi- cers, 375. duties for which administrators are chargeable, 37S. liable for failure to administer estate in accordance with last will and testament, 375. no justification that officer was advised by counsel to do wrongful act, 376. chargeable with negligence and bad judgment in investing funda of the estate, 376, 387. liable for failure to resist the allowance of unjust claims, 377. refusal to pay allowed claims, 377. failure to pay heir his distributive share, 377. failure to observe the order of preference in the distribution of assets, 377. neglect of administrator to file account, held constructive conver- sion, 377. failure to file inventory, considered breach of the bond, 377. scope of liability upon bond, 378. covers all assets whether coming into the hands of the officer before or after the execution of the bond, 378, 387. covers conversions before execution of bond, 378n, 387. statements in report of officer charging himself with assets he never received, not conclusive against sureties, 378. funds collected under color of office, but not properly assets of the estate, 379. bond covers all defaults in reference to land of decedent, although the officer has no authority touching the land, 379. if administrator is debtor of the estate be must account for the debt on his bond, 379. not. liable for failure to account for collection of rents in the right of heirs, 380. expense of administration not chargeable against the bond, 380. failure to pay attorney fees in accordance with order of court, a ■breach of bond, 380. successive administration bonds cumulative, 380. ancillary administration bond not cumulative with bond given in the principal administration, 381. when judgment or order of court is necessary to action on bond, 381. not necessary to have execution against administrator before insti- tuting action on bond, 382. sureties concluded by judgment against the principal, 383. judgment for principal conclusive in favor of sureties, 383. *J«4 INDEX. (The references are to pages.) Judicial Bondi — Oonthmed — sureties not estopped from showing judgment was obtained by fraud, 383. judgment against administrator by confession only prima facie evidence against sureties, 383. defenses to actions upon administration bonds, 3S4. conversion of trust funds with knowledge and consent of the bene- ficiaries will bar action on bond,- 384. where administrator occupies a position of double trust the law makes the transfer as soon as payment becomes due, 384. acceptance of individual note of administrator by distributee exou" erates sureties, 384. if executor conforms to requirements of the will, his acts will be valid although will is thereafter set aside, 385. no defense that the appointment of administrator was irregular, 385. who may maintain action on administration bonds, 385. bonds of guardians, 386. guardian liable for all property of the ward whether derived from the estate of the ancestor or other source, 387. special guardian bond to secure proceeds of land sale, not cumula- tive with general bond, 387. debts due the ward by the guardian become assets for which the bond is liable, 3818. settlement of guardian's accounts, 388. acceptance by ward of note of guardian's settlement, a full defense to sureties, 389. guardian occupying position of double trust, 389. adjudication against guardian conclusive against sureties, 389. settlement procured by fraud, not conclusive, 390. Attachment hands, 350. bonds to procure attachments, 350. bonds to release attached property or redelivery bonds, 350, 355. bonds to discharge attachment, 351, 356. not forfeited for irregularities of execution or defects in form, 352, 355. want of jurisdiction resulting from defects in affidavit, a defense to sureties, 353. whether damages for malicious prosecution are recoverable upon bond to procure attachment, 353. redelivery b,ond does not affect validity of attachment, and action for wrongful attachment may be thereafter maintained, 355. no recovery on redelivery bond unless property is actually delivered to defendant, 356. bond to discharge attachment is a final disposition of attachment proceeding and admits its validity, 356. if attachment void by reason of prohibition of law, bond to dissolve is void, 357. release of sureties by substitution or addition of new parties, 358, 363. when action accrues upon attachment bonds, 358. voluntary dismissal of attachment, an admission that it is wrong- ful, 359. failure of plaintiff to sustain his action, prima facie evidence that attachment is wrongful, 359. dismissal of attachment by reason of failure of officer to properly serve, 360, 364. attachment upon defective affidavit is wrongful, and gives rise to action on the bond, 360. INDEX. 685 (The references are to pages.) Jvdloial Bo/aAa—GoTttimted — no action: on forthcoming bond until final disposition of the case, 360. action on bond to procure attachment may be prosecuted before final disposition of case, 360. view that judgment in favor of principal, without adjudication of the attachment, is a constructive dissolution, 361. sureties are concluded by judgment against the principal, 361. good faith or probable cause, not a defense to action upon bond, 361. sureties estopped from questioning the regularity of proceedings out of which their liability arises, 362. truth of the affidavit for attachment can not be inquired into by •the sureties, 362. sureties can not show that property taken is not subject to attach- ment, 362. no defense to sureties that the officer levying the writ acted with- out authority, 362. exoneration of sureties by delivering up the property seized, 363. discharge bond exonerated by subsequent forthcoming bond, 363. exoneration by amendment to process or pleading, 363. reference of ease to arbitrators and a finding against defendant, held to create liability against surety upon discharge bond, 364. liability of sureties as affected by judgment in favor of some and against some of the defendants, 364. attachment bonds available in any court to which the case goes by 'appeal or error, 364. if judgment is appealed from but not the attachment, judgment in the appellate court does not affect the attachment, 364. measure of damages upon attachment bonds, 365. Injunction lands, 337. injunction generally inoperative without bond, 337. court of equity will require bond when not provided for by stat, ute, 338. no action accrues upon injunction bond until determined by judg- ment of court that injunction was wrongful, 339. dismissal of action without prejudice for want of service, not a breach of injunction bond, 339. dismissal of action by court for want of prosecution constitutes a breach, 340. voluntary dismissal by plaintiff a breach of the bond, 340. dismissal by agreement of parties releases sureties, 340. where dissolution of injunction is based upon facts arising after allowance of the writ, no liability on the bond, 340. dissolution of injunction on account of death of the defendant, not a breach, 341. dissolution for insufficient bond, constitutes a breach, 342. submission to arbitration, resulting in dissolution of injunction, releases sureties upon the bond, 342. dissolution as to part of the relief prayed for, not a breach, 343. no action arises upon dissolution of a temporary restraining order until final determination of the cause, 343. bond given after injunction has issued, without consideration, 343. sureties not estopped by recitals in the bond from showing that the injunction did not issue, 344. references in injunction bonds to records, make such record a part of the bond, 344. defenses of sureties upon injunction bonds, 344. measure of damages for breach of injunction bonds, 346, 348. 686 INDEX. (The references are to pages*) Judicial SonAa—Oontiimed — Insolvency proceedmgs, 390. failure to perform order of court a, breach of receiver or trustee bond, 390. order of court fixing amount due from receiver or assignee conclu- sive upon sureties, 391. Bail hands, 391. granting bail a judicial act, bond given without order of court a nullity, 391. ordered by officer having no power to act, a nullity, 391. surety estopped from asserting lack of authority if bond recites necessary jurisdictional facts, 392. conditions in bail bonds, 392. time of appearance, 392. place of appearance, 394. defenses against bail bonds, 395. exoneration of bail, 397. Replevin, ionds, 367. court has no authority to issue writ of replevin without bond, 367. conditions of bond in replevin, 368. bond valid although not conforming to statutory requirements, 368. the oflScer serving the writ made the judge of the sufficiency of the bond, 368. can not be enforced if any essential element of contractural rela- tion wanting, 368. not enforceable if the court has no jurisdiction of the subject mat- ter, 369. bond invalid if the law under which action is brought has been repealed, 409. what constitutes breach, 369. failure to prosecute action a breach of the bond, 369. voluntary dismissal of the action, 369. dismissal by operation of law or because of death of party, not a breach, 369. dismissal for failure of proof without finding as to title, 370. no action caji be maintained on the bond until the case is finally determined, 370. sureties concluded by final order in replevin action, 370. final judgment will not be enlarged, by implication, to include findings not actually entered, 370n. sureties bound by judgment although entered by confession or con- sent of parties, 371. sureties not permitted to show that the property taken belonged to a stranger, 371. measure of damages, 371. when damages may be assessed in action upon the bond, 371. costs and expenses including attorney fees as an element of dam- ages, 373. interest from the date of judgment in replevin, recoverable on the bond, 373. defenses; in action upon replevin bond, 373. material alteration in the bond as a defense, 373. dismissal without consent of defendant, 373. a change of defendants by the substitution of new parties, 374. defenses in mitigation of damages, 374. mo defense that property was destroyed by unavoidable casualty pending final action, 374. subsequent seizure under process of law, a defense, 375. INDEX. ' 687 (The references are to pages.) Jndldal Officers— cannot act through deputy, 245. liable upon their o£Scial bonds for acta performed without juris- diction, 287. liability for ministerial acts, 291. distinguished from public officers, 375. Jndgment — creditor having judgment lieu upon property of principal may suffer same to become dormant without impairing rights against prom- isor, 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, 226. not material, that the wrong date of the judgment is set out in an appeal bond, 319. view that judgment against the principal upon official bond is con- clusive against the surety, 303. sureties upon bond to discharge attachment are concluded by a judgment against the principal, 361. against plaintiff in replevin dismissiong action or finding right of property in defendant, conclusive against sureties, 370. judgment in replevin by confession, binds the sureties, 371. as to whether judgment against principal is necessary to cause of action upon an administration bond, 381. against principal upon administration bond conclusive against sureties, 383. adjudication against guardian in settlement of his accounts, con- clusive against his sureties, 389. surety paying judgment, entitled to have an assignment of same to himself, 434. paid by surety, not extinguished; 442. against surety, prima fade evidence against co-surety in action for contribution, 498. against surety, conclusive as to his right of contribution, 517. Jnrisdiction^ promisor upon judicial bonds estopped from denying the jurisdic- tion of the. court, 20, 336, 344. liability upon bonds of judicial officers acting without jurisdiction, 287. distinction between acts done in excess of jurisdiction and acts done in the absence of all jurisdiction, 289. if judge in good faith determines he has jurisdiction, his decision, though erroneous, is judicial, and no liability arises on his bond, 290. if jurisdiction to issue legal process is not apparent on the writ, the burden of showing validity is on the officer serving the pro» cess, 296. no jurisdiction in appeal acquired, where bond not filed within statutory period, 314. dismissal for want of jurisdiction, not a constructive affirmancf of the lower court, 321, 324. want of jurisdiction in attachment by reason of defective affida- vit, a defense to sureties, 353. replevin bond invalid if court has no jurisdiction over subject matter, 369. 688 INDEX. (The references are to pages,) Justice of the Peace— ^ issuing warrant of arrest without authority, liable for damages on his bond, 288. failure to issue order of arrest when required by law, a breach of bond, 292. failure to issue execution when required by law, a breach of min- isterial duty, 292. appeal from, to a court of record vacates all judgments or orders, 336. statutory limitations as to appeal from, mandatory, 337. Justification of Sureties-^ appeal may be dismissed for non-compliance with statute as to jus- tification of sureties, 31S. E Kmoivledge^ suretyship contracts without the knowlqige of the principal are binding upon the promisor, 67. immaterial whether the creditor has knowledge of the suretyship at the time the relation arises, 125. promise to pay deemed waiver of defense only when promise is made with knowledge of defense, 130. promisor discharged by a release of securities in hands of the credr itor although he has no knowledge of the additional securities at the time he signs, 139n. promisor bound if he signs with knowledge that main contract ia ultra vires, 150. promisor who signs as surety for a firm with knowledge that the partnership name was signed to the main contract by a partner without authority, will be bound, 150. fraud of principal, without knowledge of creditor, not a defense to promisor, 158. false representation of third persons without knowledge of creditor will not release promisor, 159. conditions imposed by promisor upon hia contract without knowl- edge of creditor, not a defense, 200. promisor who pays may be subrogated although his contract was made without knowledge that creditor holds securities, 430. surety paying debt without knowledge that creditor has released securities may maintain action to recover back, 466. Iiabor 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, 207. payment of labor claims to prevent liens from being perfected cre- ates no liability upon bond to "save harmless from liens," 210. view that a municipality has no power to require contractor to fur- nish bond conditional upon the payment of labor and material claims, 208n. V INDEX. 689 (The references are to pages.) Xegislatnre— bonds of public officers as affected by subsequent acts of legislature changing the duties of officers, 107a, 253. extension of tenure of office by legislature, 256. Iietter of Credit (See Iietters 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. Xettera of Guaranty (See I- not necessary that the name of the obligor be recited in the body ol the bond, 191. Offer to Pay- distinction between tender and oflfer of payment, 135. Officer as affecting the contract of the corporate surety, 410. Presumption o£ Fact- irregular indorser presumed to be guarantor, 8n. irregular indorser presumed to be surety, 8n. presumption of irregular indorsement may generally be rebutted, 8. 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, II. consideration of a bond is presumed until contrary is shown, 199. possession of bond by surety is a presumption of payment, 227. approval of bond of public officer is presumed from its acceptance and retention, 247. the due performance of official duty will be presumed, 297. no presumption that public officer has authority to do what he has undertaken, 298. Principal- one for whose account the contract was made, 4. guaranty for one principal can not be enforced if advancements are made to more than one, 65. guaranty for joint principals not held for advancements made to one, 65. 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, 15, 158. necessary for principal to sign bond where obligation is joint, ig^l. not necessary for principal to sign if principal is bound without reference to bond, 191. change in amount of compensation of principal, not a material alteration of main contract, 214. signature of principal to official bond, not essential to its validity, 248. Priority^. surety paying debt of another, entitled to the priority held by the creditor, 438. wife paying mortgage, subrogated to priority of the security, 449. creditor will have priority in proceeds of mortgage given to surety, over debts due the surety secured by same mortgage,, 460. INDEX. 701 (The references are to pages.) Private Obligations- distinguished from official duty, 189. Prohibition by Statute (iSee Statutes Belating to Suretysbip)— Promise- meaning of the words "promise" and "agreement" fis used in the statute of frauds, 30. oral promise to pay the debt af another will be binding if the prom- isor 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 v. CJook, 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, 190. Promisor — defined, 4. who may become promisor in a suretyship contract, 12. release of promisor by creditor, 168. paying debt, entitled to indemnity from principal, 503. Promissory Note — execution of note for usurious interest,' a good consideration for extension of time to principal, 118n. execution and delivery of new note payable at a later date, extends time of original obligation and releases promisor, 119'. giving note for past due obligation, not an extension of time, 120. if note given in renewal is invalid, the old note, though surrendered, is revived, 136. when note of principal to a creditor is a payment which releases promisor, 227. acceptance by distributee of the individual note of administrator or guardian releases the sureties, 384, 389. payment by surety with note gives immediate right of contribution from co-surety, 487. contribution between parties to bills and notes, 601. acceptance by creditor of negotiable note of promisor, equivalent to payment, 510. Public Money — liability of public officers to account for interest upon public funds, 265. lost by failure of bank, liability of sureties of officer, 280. lost by theft or robbery, 284. Pnblic Officers (See Official Bonds)— who are public officers, 237. duty of public officers distinguished from private obligations, 189. franchise of public office is not contractual, 237. distinction between contractual and official relations, 239. 702 index: (The references are to pages.) Fnblio OMcevit— Continued — sureties upon official bonds contract with reference to reserved pow«r of the sovereign to control the tenure and duties of the office, ^40, 253. , c alteration in the official relatdons between the officer and the State not a defens^ 240. official oath is a dtstinguishing characteristic of public office, 240. notary public is a public officer, 241. attorney-at-law a public officer, 241. test of public office, 241. duty of officer to give bond arises from statute, 241. liable for breach of duty, although no bond is given, 242. official bond valid, although not conforming to statute, 242. giving a joint bond where statute requires joint and several, 243. sureties not released by omission of seal from official bond, 243. official bond given without requirement of law is binding, 243. official bonds, required by unconstitutional statutes, invalid, 244. bonds of deputies, 244. vacation of public office by failure to deliver bond within the time required by law, 249. alterations of bonds of public officers as a defense to sureties, 252. change in the duties of public officers by subsequent legislation, 107a, 253. iwhen sureties upon official bonds not liable for defaults in added duties, 254. sureties not discharged by change in the compensation of public officer, 255. extension of tenure of office by legislative act, 256. bonds of, not retroactive, 259. by accepting office impliedly warrant that they have capacity to fill the position, 264. sureties of, liable for failure to account for the use of public funds, 265. cases holding the officer not liable to account for interest on public funds, 268. duty of, to act under unconstitutional law, 273. trespass and other wrongs committed by sheriff or constable colore officii, 274, 279. liable for loss of public funds by failure of bank used as public depository, 280. loss of public money by theft or robbery, 284. sureties not liable for loss resulting from irresistible superhuman force, 286. liability of judicial officers upon their official bonds, 287, 291. government officers not liable for acts of deputies, 294. not liable for non-performance of duty if prevented by circum- stances beyond their control from exercising their functions, 296. may refuse to act under unconstitutional statutes, 296. the due performance of official duty will be presumed, 297. no presumption that officer has authority to do what he has un- dertaken, 298. PaMlc Policy- stipulation that amount paid by surety is conclusive against prin- cipal, void as against public policy, 421. agreements to appoint deputies, void as against public policy, 245. against public policy to imply a promise of indemnity in favor oi surety upon bail bond, 504. INDEX. *0" (The references are to pages.) Qnalification of Sureties— upon bon(J.8 of puWie ofBcers, 246. as to residence within the jurisdiction where bond is filed, 247, 316. K Ra-Uficatiom^- suretyship contract by infant becomes valid only when ratified by him after reaching maturity, 12a. an unauthorized signing of a firm name to a suretyship contract will bind the partnership if ratified by the firm, 12b. if signature to a suretyship engagement is affixed by an unauthor- ized agency, a subsequent ratification will validate the trans- action, 36. Real iSnretysUp^ defined, 3. mortgage and pledge the subject of real suretyship, 4. Re-Arrest— of accused after escape exonerates surety upon bail bond, 398. Recognizance (See Ball Bonds)— Redelivery Bond- conditions of, 3S5. does not bar action to dissolve attachment, 355. will be binding if property is released, although not in form re- quired by statute, 355. failure to Secure order of court, although required by law, will not invalidate bond, 356. not liaJble unless the property is actually delivered, 356. no action upon forthcoming bond until a final disposition of the case, 360. Receiver- considered the "hand of the Court," 390. failure to perform the order of the Court, a breach of bond, 390. order fixing the amount due, conclusive upon sureties, 391. sureties of, may follow and subject trust funds in the hands of third person, 435. Recitals of the Contract- promisor estopped from denying, 20, 215, 321, 336. not estopped from denying recitals inserted by fraud, 20, 217. liability upon bond limited to the recitals of the instrument, 203. that injunction has been allowed, not conclusive against sureties 344. • Recording MIortgage— failure of creditor to record mortgage held as additional security will discharge promisor, 141, 142. Reference to Other Instmments^ incorporation of other instruments into a bond by reference 196. by-laws of a corporation incorporated into a bond by reference, 198. 704 INDEX. ' (The references are to pages.) Befonuation of Contract— if contract is induced by fraud or mistake it will be reformed in equity, 18. alterations in contract resulting from accident or mistake reformed in equity, 104. Regular ludorser (See Indorser)'— Belease— whatever released principal will release promisor, 146. release of co-promisor by the creditor, 170, 498. release of co-promisor reserving rights against remaining prom- isors, 172. Release of iSecnrity Held bjr Creditor- discharges promisor pro tanto, 137, 465. promisor discharged whether the lien or security was acquired at the time of the execution of the suretyship contract or later, 138. view that promisor is discha.rged by release or 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 ^scharged by loss of security resulting from the negld. 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 prom^ isor 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, 465. release of levy of execution upon property of one of several co- promisors will discharge remaining promisors pro tanto, 172. if surety pays without knowledge that creditor has released secur- ities he may maintain action to recover back, 466. Rents and Profits^ not covered by appeal bond in foreclosure, in the Federal Courts, 330. covered by appeal bond in action for ejectment, 332. Replevin- purpose of replevin action, 367. Court has no authority to issue writ without bond, 367. conditions of bonds in replevin, 368. bond valid, although not conforming to statutory requirements, 368. the officer serving the writ made the judge of the sufficiency of the bond, 368. bond can not be enforced if any essential element of contractual relation wanting, 368. bond not enforceable if the court has no jurisdiction of the sub- ject matter, 369. bond invalid if the law under which action ia brought has been repealed, 369. no action can be maintained upon bond until the case is finally determined, 370. sureties upon bond concluded by final order in replevin action, 370. INDEX. ■ 705 (The references are to pages.) ttepleviOf-'Oontinued — final judgment will not be enlarged, by implication, to include find- ings not actually entered, 370n. sureties bound by judgment, although entered by confession or con- sent of parties, 371. sureties not permitted to show that the property taken belonged to a stranger, 371. Breach of bond, 369. failure to prosecute without delay, 369. voluntary dismissal of action, 369. dismissal by court for want of jurisdiction, 369. dismissal by operation of law or because of the death of party not a breach, 369. dismissal for defect of process, 370. dismissal without a finding as to title, for failure of proof, 370. Defenses in action on bond, 373. material alteration of the bond, 373. dismissal of action without consent of the defendant, 373. change in the defendants by substitution of new parties, 374. defenses in mitigation of damages, 374. the increase in value of property during detention by reason of the addition of labor to it, set off in mitigation of damages, 374. no defense that property was destroyed by unavoidable casualty pending final action, 374. subsequent seizure under process of law a defense, 375. MeasiM-e of damages upon bond, 371. defendant entitled to full compensation for his loss, 371. damage to defendant's business by unlawful detention, 371. if damages not assessed in replevin action, may be assessed in action on the bond, 372. costs and expenses including attorney fees as an element of dam- ages, 373. interest from the date of judgment in replevin, recoverable on the bond, 373. affidavit in replevin prima facie evidence of the value of the prop- erty seized, 373. Request to iSne— < 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. Res Adjndicata— 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, 303. sureties upon bond to discharge attachment are Concluded by a judgment against the principal, 361. judgment against plaintiff in replevin dismissing action on find- ing right of property in defendant, conclusive against sureties, 370. surety upon administration bond concluded by judgment against principal, 383. adjudication against a guardian conclusive against his sureties, 389. Rea Gestae— contemporaneous declaration of principal, admissible against surety as part of the res gestae, 299. 706 INDEX. (The references are to pages.) Beserration of Remedies— against promisor prevents the discharge of promisor by extension of time to principal, 128b. promisor not discharged by release of principal i'| remedies are reserved against the promisor in the contract of release, 146. release of one of several co-promisors reserving rights against re- maining promisors will not discharge those remaining, 172. Residenee of Sureties- statutory requirements, 247, 316. Restoration— when liability of surety upon mutilated bond may be revived by restoration of the instrument, 215. Retrospectijve Contracts- guaranty will not be given retrospective effect, 66. bonds not retroactive unless the instrument so stipulates, 204, 299. Revival of Obligation— if payment or substituted security is void, liability against lirom- isor is revived, 135. Revocation- executory contract of guaranty when and how it may be revoked, 94, 184. death of guarantor as a revocation, 95, 184. executed contract of suretyship not revocable, except by mutual assent, 184. Rigbts and Remedies- subrogation, 426. contribution between co-sureties, 473. the right of indemnity against the principal, 503. promisor who pays the debt of another entitled to enforce all the remedies of the creditor, 435. Robbery- liability of sureties of public officers for loss of public funds by theft or robbery, 284. not liable for robbery by a public enemy, 287. s Salary (See Compensatlom)— Seal- historical statement as to use of seals, 192n. a bond is a speciality and required to be under seal, 190. held, signature by surety to bond not essential if instrument is under seal, 192. seal is a symbol of the genuineness of a bond, 192. one seal sufficient for several signers, 193. imports a consideration, 193. modification of effect of seals, by statutes in certain States, 193. where instrument recites that it was sealed by the obligor he is estopped from denying it, 216. if instrument is under seal only those named as parties therein can maintain action upon it, 231. if instrument not under seal any one having beneficial interest can maintain action, 231. official bond without seal is binding as a simple contract, 243. rasEZ. 707 (The references are to pages.) Secnrities veyance in the right of the creditor, 438. surety wlio pays loss resulting from misconduct of a deputy is subrogated to rights of principal officer against the deputy, 438. the creditor's right of priority passes to the promisor by subroga- tion, 438. promisor subrogated to creditor's right to recover stipulated at- torney fees, 439. surety up'on building contract who completes the building, subro- gated to the reserved payments stipulated in the main contract, 439. » surety paying judgment subrogated to the judgment lien of cred- itor upon property of principal, 440. judgment lien attaches in favor of promisor from the date of the judgment against principal, 442. surety is subrogated to creditors' rights against co-sureties, 443. promisor who pays subrogated to mortgage security held by cred- itor and may have foreclosure in his own name, 444. equity of surety paying debt secured by mortgage, superior to, sub- sequent lien of creditor on the property, 445. rule as to "tacking to mortgage," its effect upon subrogation, 445. view that the equity of subrogation is superior to lien of cred- itor for subsequent ad%'anc«s, 446. applies to one in the situation of a surety, 447. retiring partner paying firm debt, subrogated to firm securities held by creditor, 448. vendee of one of two pieces of land covered by mortgage who pays the debt, subrogated to creditors' right upon the mortgage against the other piece, 448. vendor of land sold subject to mortgage, who pays the debt, subro- gated to creditors' rights under mortgage, 448. regular indorser, subrogated to all the remedies of the holder against the maker, 448. indorser entitled to be subrogated to mortgage security held by creditor, 448. a wife redeeming mortgage in the interest of her dower, subrogated to the priority of the mortgage, 449. owner of a life estate who pays mortgage, subrogated to rights of mortgagee to the extent of the payment, 449. as applied to persons jointly liable for a debt, 449. accommodation acceptor, subrogated to securities of the drawer in the hands of the holder, 449n. promisor who pays, subrogated to pro-rata §hare of dividend de- rived from assets of principal, 450. where one co-surety is deceased, the survivor upon payment, is subrogated to creditors' rights against estate of decedent, 451. between co-sureties, 453. if several sureties are bound by separate instruments, with limited! liability, although for same transaction, are not co-sureties, and not suiarogated to collateral held by any one of the sureties, 433n, 478. 714 INDEX. (The references are to pages.) SnhTogaiioti— Continued. — if one co-surety holds indemnity furnished by a stranger the other sureties are hot subrogated to it, 454. between successive sureties, 454. where successive bonds are given in legal proceedings the sureties upon last bond can not be subrogated to creditors' right against prior sureties, 454. prior surety in successive legal proceedings, subrogated to rights of creditor against later surely, 455. view that later surety in legal proceedings is entitled to subroga- tion against the prior surety where the prior surety consents to the stay of execution, 458. in favor of creditor to securities held by surety, 459. creditors' rights under mortgage given the surety attach as of the date of the mortgage, 460. purchase of Iknd by surety upon which indemnity mortgage rests does not operate as merger as against creditors' right of subro- gation, 460. conveyance of land incumbered by surety's indemnity mortgage without notice of Creditors' right of subrogation will defeat the creditors' priority, 460. if mortgage secures two debts, for one of which the mortgagee is only surety, the creditor's right of subrogation, held to be superior in the proceeds of the mortgage, 460. creditor not subrogated to indemnity in hands of surety furnished by a stranger, 461. distinction made by some courts between security given for in- demnity and for payment, 462. indorsee subrogated to -securities held by his indorser, 462. indorsee takes securities in hands of indorser by subrogation, sub- ject to all prior equities, 463. view of the English courts -as to subrogation in favor of a cred- itor, 463. creditor not subrogated where principal and surety are both in bankruptcy, 463. surety discharged if deprived of right of subrogation by act of creditor, 465. failure by creditor to file mortgage discharges surety, 465. release of levy of execution discharges surety, 465. —cancellation of a judgment lien destroying surety's subrogation, 465. arises only when possession of principal's property by creditor or the lien, grows out of the suretyship contract, 465. surety for loan from bank, not subrogated to deposits of principal in the bank, 465. surety paying without knowledge that creditor has released securi- ties may recover back the loss on his expected subrogation, 466. when surety may be subrogated to the principal's right of set-off, 466. not available to one who pays as a volunteer, 467. agent who advances for the account of his principal is not a vol- unteer, 469. view that one paying upon a moral obligation is not a volunteer, 469. one performing medical services, subrogated to the lien of principal upon property held for his care and support, 469. as applied in favor of one furnishing necessaries to an infant, 469n. view that one advancing necessaries to a wife, not subrogated to rights of wife, 469n. conventional subrogation, 470. waiver of subrogation, 472. INDEX. 715 (The references are to pages.) Sncoessive Bonds^ all sureties upon suoeessivfr bonds may be joined in one action, 234, 335. second bond given in same term of public officer, cumulative, 303. Successive appeal bonds, cumulative, 334. successive administration bonds, 380. subrogation between successive bonds, 433, 454. SmamaTy Action ITpon, Appeal Bonds— when may be brought, 328. Snpersedeas (See Stay of Execution}^ Surety — defined, 5. general and special meaning of the term. In. a favored debtor, 3n. inaccurate use of the word surety, 4n. distinguished from guarantor, 5, 6n. not entitled to notice of default, 6. extension of time to surety discharges co-surety to the extent of the contributory share of the surety whose contract is extendi €d, 122. paying debt of another, entitled to have securities held by cred- itor assigned to him, 429, 434. paying a judgment, entitled to have it assigned to himself, 434. paying debt, subrogated to right of creditor to subject assets by creditors' bill or action to set aside fraudulent conveyance, 438. paying debt of another, entitled to the priority held bv the cred- itor, 438. paying note containing stipulation for attorney fees, entitled to recover the fees, 439. entitled to be subrogated to the rights of the creditor against co- surety, 439, 443. entitled to foreclose in his own name mortgage security held by creditor, 444. subrogation, as applied to one in the situation of a surety, 447, 448. entitled to pro rata share of dividend derived from assets of prin- cipal, 450. entitled to dividend on entire claim against estate of deceased co- surety, 451. holding indemnity from the principal, must account for it to co- surety, 453. need not account for indemnity furnished by a stranger, 460. subrogation between successive sureties, 454. surety paying debt without knowledge that creditor has released securities may maintain action to recover back, 466. when surety will be subrogated to tlie principal's right of set-off, 178, 466. contribution between co-sureties, 473. when contribution arises between successive sureties, 478. surety for surety not entitled to contribution, 480. special contract between sureties as to contribution, may be' shovra by parol, 471. contribution between persons in the situation of a surety, 482. one becoming surety at request of co-surety, entitled to contribu- tion, 483. contributing to default of principal, barred from contribution, 486. equitable exoneration before payment, 488. amount recoverable in contribution by surety, 489. 716 INDEX. (The references are to pages.) Snrety — Oontmued — contribution between sureties as affected by the insolvency or death of one or more co-sureties, 490. who has paid, may recover back from indemnified co-surety a, pro- portionate share of the indemnity, 492. paying debt barred by statute of limitations, can not recover con- tribution, 496. who pays to prevent default, can not recover conitribution, 496. amount recoverable by surety upon implied right of indemnity, 511. when surety can not recover from principal for payment of claims for which the principal was not liable, 513. who pays, may have indemnity although payment could not have been enforced, 516. judgment against surety conclusive as to his right of indemnity, 517. Negotiable instruments. ' irregular indorser presumed to be a surety, 8n. ■ irregular indorser before delivery generally results in contract of surety, 9. promisor may be shown by parol to be a surety, 167. Official bonds. qualification and approval of sureties upon official bonds, 246. surety of public officer not discharged by a change in the compen- sation of the principal, 214, 255. as affected by an extension of the tenure of office, 256. when liable beyond the expiration of the term, 257. on general bond, not liable for defaults under special -bond, 257. sureties of officers holding office several terms, 259. where officer pays defalcations of one term with moneys received during another term, 260. where officer borrows money to make good a shortage and repays loan with public funds of later term, 261. liability of, for conversions of public officer after the close of his term, 261. effect of approval of accounts at close of first term, as to the lia- bility of the second term sureties, 262. liability as affected by the fact that the wrongful act of the officer is partly in one term and partly in another, 263. liable for interest collected upon public funds, 265. cases holding officer not liable to account for interest on publio funds, 268. not liable for defaults of principal in not performing contracts with persons dealing with him in his official capacity, 269. not released by the negligence and misconduct of other officials, 270. not liable for failure of public officer to account for money re- ceived outside the scope of his office, 271. not liable for failure of officer to account for money borrowed with» out authority, 274. liability of sureties of sheriff or constable for trespass and other wrongs committed colore officii, 274, 279. liable for loss of public money by failure of bank, 280. loss of public money by theft or robbery, 284. sureties of public officers not liable for loss resulting from irre- sistible superhuman force, 286. judicial officers, 287, 291. Judicial bonds. judicial bond valid though not conforming to the law as to the number of sureties, 317, 353. INDEX. 717 (The references are to pages.) Snrety — Oontimied — not bound, where court acquires no jurisdiction in attachment by reason of defective affidavit, 353. in bond to discharge attachment, concluded by judgment against principal, 361. upon attachment bonds, estopped from questioning the regularity of the proceedings, 362. exoneration of sureties in attachment proceedings, 363. judgment against plaintiff in replevin dismissing action or finding right of property in defendant, conclusive against sureties, 370. judgment by confession, in replevin binds sureties, 371. Admimstration hands. concluded by judgment against principal, 383. acceptance by distributee of individual note of administrator or guardian, releases surety, 384, 389. Surety in Iiegal Proceedings (See Jndioial Bonds)— Snrety of Public Officers (See Public Officers and Official Bonds)— Snrety for a Surety^ not liable in contribution, 480. first sureties upon successive appeal bonds, sureties for the later sureties, 334. Snrety Companies (See Corporate Suretyship)—' Suretyship — defined, 1. embraces all forms of obligation to pay the debt of another, 1. includes surety guarantor and indorser, 2. arises only by express contract, 2. as related to the application of legal remedies, 308. Suretyship Defenses- duress of principal as a defense, 12d, 148. failure to give notice of acceptance or default to guarantor, 91. failure to comply with restrictive conditions upon letter of credit as to amount advanced will release guarantor, 109. substitution of new parties, 109. enlargement of the business of employer increasing the risk as a defense to promisor. ]13. delay of creditor in pursuing remedies against principal, not -a. de- fense to promisor, 131. payment or other satisfaction as a discharge of the promisor, 133. payment in part discharges promisor pro tanto, 134. refusal to accept tender by principal discharges promisor, 135. distinction between tender and offer to pay, 135. taking of additional security not a defense to promisor, 135. liability against promisor revived if payment or substituted se- curity is void, 135. whatever releases principal will release promisor, 146. release of principal by operation of law, 147. where release of principal by operation of law is without fault or procurement of the creditor, 149. promisor may have judgment against him set aside if creditor fails to recover in subsequent action against principal, 148. coverture, insaoiity, infancy or other incapacity of principal, not available as defense to the promisor, 149. the false representation of third persons, whereby the promisor ia induced to sign, not a defense, 159. 718 mDEx. (The references are to pages.) Suretyship Defenses — Contimied — set-oflf or counterclaim as a defense to the promisor, 178. defenses based upon the right of the promisor to control the appli- cation of collateral, 181. bond a nullity unless the instrument recites the debt, a promise to pay, a condition of defeasance, and the name of the obligee, 190. want of consideration not a defense to suretyship contract under seal, 193. alterations in bond as defense to surety, 214. to actions upon appeal or stay bonds, 335. to actions upon injunction bonds, 344. to actions upon replevin bonds, 373. to actions upon administration bonds, 384. to actions upon bail bonds, 395. Alteration of the principal contract, 98, 211. •which adds to or takes away some obligation already imposed, 98. promisor discharged even though alterations are beneficial, lOOn, 110. change in the place of payment is material, 101. changing the date of maturity of the principal contract as a de- fense, 101. promisor discharged b'y material alterations in the principal conr tract whether such alterations are made before or after deliv- ery of contract to creditor, 102. same effect given to alterations whether made by debtor or cred- itor, ]oa changes or mutilation by a stranger not a defense to the promisor, 104. alteration of contract as affected by the absence of fraudulent in- tent, 104. immaterial alterations, though fraudulent, not a defense, 105. addition of a new party as principal maker, a defense to promisor, 105. addition of new party as surety or guarantor, not a defense, 106. change in the duties of the principal as a defense to the promisor, 106, 212. surety upon bond of puhlic officer discharged by subsequent legis- lation changing duties of the oflBce, 107a. promisor discharged by alterations as to amount to be advanced by the creditor, 108. failure to perform contract, not an alteration, 108. Conditional contracts of suretyship, 163. promisor not bound if conditions are not complied with, 163. conditions precedent need not be in writing, 163. conditions relating to the performance of the contract can not be shown by parol, 164. conditions imposed by law need not be set out in the contract, 165. waiver by the beneficiary of conditions imposed by law, 165. the consideration of contract is not a condition and may be shown by parol, 166. Extension of time, 114. giving time to principal without the consent of promisor, 114. extension agreement must be for a consideration, 115. payment of obligations already due, not a consideration for ex- tension, 116. payment of interest in advance, 117. promise to pay interest in advance, 117. payment of usurious interest is a consideration, 117n. execution of a note for usurious interest, a good consideration for extension, 118n. INDEX. 719 '(The references are to pages.) Suretyship Defenses— CoufimtetJ — not a defense if promisor is fully indemnified, 123. extension must be for a definite time, 119. execution and delivery of a note payable at a later date is an ex- tension, 119n. will not be implied from the acceptance of collateral maturing at a later date, 120. extension of time by act of legislature, 121. extension to surety — effect upon eo-surety, 122, 172. as a defense to persons in the situation of a surety, 124. by appeal or continuance of judicial proceedings, 127. with reservation against the promisor, does not discharge promisor, 128b. disHnction between agreements not to sue and agreements to extend, 129. waiver of defense of extension, 130. premise to pay, with knowledge of the fact of extension, but in ignorance of the legal effect, is a waiver of extension, 130. Failure of creditor to sue principal, 173. promisor not discharged because the creditor fails to sue when, requested, 174. statutory provisions requiring creditor to sue on request of prin- cipal, 175. bill in equity to compel creditor to proceed against principal, 176. doctrine of Pain vs. Packard, 176. Fraud of tUe creditor, 150. practiced by the creditor upon the principal, 13, 148. practiced against the promisor by the creditor, 14, 150. secret stipulations between creditor and principal affecting the per- formance of the main contract, a fraud upon the promisor, 150. concealment of material facts affecting the risk of the promisor, 152'. not a defense if the undisclosed facts were not known to the cred- itor, 154. not required of creditor to disclose what he knows concerning the irregularities of principal in other transactions, 155. constructive fraud, resulting from failure to disclose facts affect- ing the risk, coming to the knowledge of the creditor after the execution of the contract, 156. ' insolvency of the principal need not be disclosed to promisor, 156. breach of contract by principal need not be disclosed, 157. creditor need not exercise diligence in watching the principal in the interest of the promisor, 158. fraud can not be pre'dicated upon a promise of the creditor, even though made without intent of fulfilling, 162. Fraud and miseonduat of the principal, 158. does not invalidate suretyship contract, if without knowledge of creditor, 158. creditor not bound to investigate as to whether promisor has been deceived, 159. delivering suretyship obligations without complying with condi- tions, 159. the doctrine of special agency as applied to delivery without com- plying with conditions, 160. circumstances amounting to con9.truotive notice of conditions, 160. Release of promisor by creditor, 168. may be shown by parol, 168. creditor who has declared to promisor that contract is at an end, estopped from enforcing it, 168. ' 720 INDEX. (The references are to pages.) Snretysliip Defenses— OontinuedE — release of co-surety discharges remaining surety to the extent of his right in contribution, 170, 498. same, whether release voluntary or by operation of law, 171. release of co-promisor, reserving rights against remaining prom- isor, not a defense, 172. statutory provisions as to release of one of several co-promisors, 173. Release of security held hy eregiior, 137, 465. possession of, or lien upon property of principal by the creditor, creates trust in favor of promisor, 138. promisor discharged even if security of no value, under certain con- ditions, 139. same effect whether release is voluntary or result of negligence, 140. failure to file mortgage, 141, 465. failure to foreclose mortgage, 141. selling securities at a sacrifice, 143. release of securities by operation of law, 143. release of property of principal not held as security for suretyship debt, 145. release of levy upon property of co-surety discharges remaining surety to the extent of right of contribution, 172. Revocation, 184. executory contract of suretyship revoked by notice, 184. when death of promisor is a revocation, 184. executed contract revocable only by mutual assent, 184. death of promisor as a revocation of joint liability, at common law, 185. T Tacking Mortgages- rule as to tacking upon secured claims subsequent advances of the creditor, 446. Telegram- signature to, upon the blanks used by the sender is a sufficienli compliance with the statute of frauds as to a "memorandum" signed by the party to be charged, 36. Tender — refusal to accept tender of payment made by principal will release promisor, 135. distinction between tender and offer of payment, 135. Tenure of Office — extension of, by legislative act, 256. Term of Court- stipulation in bail bond to appear at next term of court, sufficiently definite, 392. agreement between the principal and the prosecution postponing trial to some future term, releases sureties upon bail, 393. Term of Office- second bond given in same term of office, cumulative, 263. when bond given for a term of office will cove.' defaults before delivery, 252. liability of sureties where default of officer is partly in one term and partly in another, 263. Trespass- liability of sheriff or constable for trespass committed colore officii, 274. INDEX. 721 (The references are to pages.) Trust- creditor invested with trust whenever property of the debtor appli- cable to the debt is placed in his control, 13S. Trust Funds- may be followed and subjected in the right of the creditor by prom- isor paying the debt of another, 437. subrogation not available in following trust funds where one re- ceiving had no knowledge of the trust character, 437n. u Ultra Vires- promisor will be bound if he signs with knowledge that main con- tract is ultra vires, 150. when act of corporation becoming surety upon bond is ultra vires, 286, 353. IJnsoundness of Mind- promisor must be of sound mind, 12, 246. Usury- payment of usurious interest in advance as a consideration for an extension of time to the principal, 117n, I1&. the execution of a note for usurious interest, a good consideration for an extension, 118n. if note given in renewal is void on account of usury, the liability upon the original note is revived, 137. V Vendee — when in the situation of a surety, 448. Vendor — in the situation of a surety who sells land subject to a mortgage which the vendee assumes and agrees to pay, 25, 448. Vendor's Iiien^ surety for purchase price of land subrogated to, 437. Venue, Change of — where change of venue is ordered without statutory authority, failure of accused to appear is not a forfeiture of bail, 398. Volunteei>- subrogation not available to one who pays the debt of another as a mere volunteer, 467. agent advancing payment for account of his principal, not a, volun- teer, 469. w Wager (See Gambling Debt)— Waiver — of the defense of "extension of time," 130. mere acquiescence by the promisor is not waiver, 131. waiver by estoppel, 131. 722 nsTDEX. (The references are to pages.) WaiveT—Contmueid — promise to pay deemed waiver of defense only when promise is made with knowledge of defense, 130. sureties may waive provisions of statute intended for their beueflt, 165. acceptance of bond of public officer after the time fixed by law waives the right to declare the office vacant, 251. failure to make timely objection to defects in judicial bonds, con- sidered a waiver, 320. consent of obligee ta perfect appeal after date limited by law, a waiver of irregularity, 321. dismissal of injunction by consent, a waiver of defendant's right to damages, 340. of the benefits of subrogation, 472. involuntary waiver by delay in enforcing rights, 472. subrogation not waived by acceptance of other security from the debtor, 473. ■Waste- creditor permitting security in his hands to be wasted, to the ex- tent of the loss, releases promisor, 142. "Widow- surety of administration officer liable for failure of principal to pay to widow amount allowed by court, 377. Wife (See Married Women)— Writing- contract of suretyship must be in writing, 2. as to whether the statute of frauds requires the consideration to be expressed in writing, 29, 30. ' statute of frauds does not require the entire contract to be in writ- ing, but merely a "memorandum" of it, 38. Hot necessary that the authority of an agent to execute a surety- ship contract be in writing, 24, 36. contract of indemnity need not be in writing, 37. waiver of defense to suretyship need not be in writing, 130. ' Date Due ' 1 i i Library Bureai Cat. No. 1137 KTP Idk^ S7Q 1Q15 Author Vol. Stearns, Arthur Adelbert •Title jjjQ la^ of suretyship, ^°p^ covering personal suretyship...