(fflrn^U Slam ^rlyool Kibratg KF 1045.882™"""'""'""'"-"'™^ The law of suretyship and guaranty :as a 3 1924 018 848 360 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018848360 THE LAW OF SURETYSHIP AND GDARAN^ AS ADMINISTERED BY COUETS OF COUNTEIES WHERE THE COMMON LAW PREVAILS. GEORGE W. BRANDT, f^' ,i^K.«/^ OF THE CHICAGO BAE. CHICAGO : CALLAGHAN & COMPANY. 1878. LIST OF CHAPTERS. Page CI-IAPTEE I. Of the Conteact, 1 CHAPTER II. Of the Statute op Featjds, ..... 48 CHAPTER III. Or THE Liability of the Surety oe Guaeantoe genbeally, 104 CHAPTER lY. Of the Liability of the Sueety when the Peincipal is dischaeged, oe not oeiginally bound, . . . 171 CHAPTER V. Of Continuing Guaeanties, . . . . . 182 CHAPTER VI. Of cases wheee the Sueety on a geneeal obligation is liable only- foe limited time oe act, . . . 194 CHAPTER VII. Of the LIABILITY OF ACCOMMODATION PaeTIES TO NEGOTIA- BLE INSTEUMENTS, AND OF THE BlANK InDOESEE OF AN- OTHEe's OBLIGATION, ...... 207 CHAPTER YIII. Of the Notice and Demand necessaey to Chaeoe a Guae- 221 ANTOE, VI LIST OF CHAPTEES. Page CHAPTEE IX. Of the Eights of the Sueett oe Guaeantoe against the Peincipal, CHAPTEE X. Of the Eights of the Sdeety oe Guaeantoe against the Ceeditoe and thied peesons, . . • • ^°° CHAPTEE XI. Of the Eights of Sueeties and Guaeantoes between EACH other — Conteibution, ..... 310 CHAPTEE XII. Of Subeogation, 350 CHAPTEE XIII. Of the Dischaege of the Sueett oe Ghaeantoe bt Payment, 387 CHAPTEE XIV. Of the Dischaege of the Sueett oe Guaeantoe by the GiYiNG OF Time, 400 CHAPTEE XV. Of the Dischaege of the Sueety oe Guaeantoe by Al- teeation of the conteact, 445 CHAPTEE XVI. Of THE Dischaege of the Sueety oe Guaeantoe by Mis- EEPEESENTATION, CONCEALMENT, FeAUD, OE NoN-COM- PLIANCB WITH THE TEEMS UPON WHICH HE BEOAMI! BOUND, 468 CHAPTEE XVII. Of the Dischaege of the Sueety oe Guaeantoe by the Ceeditoe eelinquishpng security foe the debt, . 498 LIST OF OHAPTEES. Vll CHAPTEE XVIII. ^^^' Of the DiSOHAEGE of the SuEETY OE GuAEAlfTOE BY THE Ceeditoe negligbntlt losing secueitt foe the debt, 519 CHAPTEE XIX. Of Siteeties on obligations given in the couese of the administeation of justice, 533 CHAPTEE XX. Of Bail, 557 CHAPTEE XXI. Of SrEETiES on Official Bonds, .... 577 CHAPTEE XXII. Of Statutes eelating to Sueeties and Guaeantoes, 641 CHAPTEE XXIII. Of Evidence, 654 TABLE OF CASES. THE HBFERENCES AEE TO THE SBCTIOWS. THE LETTER V I'OLLOWS THE NAME OF THE PLAINTIFF. Section Abat, Kuhn v. 14 Maitin (La.) 2 N. S. 168, 100 Abbey v. Van Campen, 1 Freem. Ch. R. (Miss.) 273, 196 Abbott, Salkeld v. Hayes (Irish), 576, 273 Abbott, Mariner's Bank v. 28 Me. 280, 17, 305 Abbott, Bancroft v. 3 AUen, 524, 194 Abbott, Fewlass v. 28 Miob. 270, 108 Abel V. Alexander, 45 Ind. 523, 298, 307 Aberorombie v. Knox, 3 Ala. 728, 82 Abeel v. EadcHff, 13 Johns. 297, 66 Abrams v. Pomeroy, 13 lU. 133, 107 Ackley, Gerber v. 32 Wis. 233, 484 AcHey, Gerber v. 37 Wis. 43, 484 Adams, Lovett v. 3 Wend. 380, 850 Adams v. McMillan, 7 Port. (Ala.) 73, 76 Adams, Roberts v. 6 Port. (Ala.) 361, ' 254 Adams v. Flanagan, 36 Vt. 400, 226, 230 Adams, Thompson v. 1 Freeman's Ch. R. (Miss.) 225, 233, 383 Adams, Lowrey ». 22 Tt. 160, 96, 174, 175 Adams, Jordan, Admr. v. 7 Ark. (2 Eng.) 348, 182 Adams v. Logan. 27Gratt. (Va.) 201, 319, 375, 380 Adams, Hewitt's Admr. v. 1 Pat- ten, Jr., and Heath (Va.) 34, 383 Adams v. Roane, 7 Ark. (2 Eng.) 360, 505 Adams, Holyoke v. 1 Hun (N. T.), Section 223; Id. 10 Bank. Reg. 270; Id. 13 Bank. Reg. 414; Id. 59 New York, 238, 409 Adams, Commonwealth v. 3 Bush. (Ky.) 41, 449 Adams v. Hodgepeth, 6 Jones Law (Nor. Car.) 327, 438 Adams v. McMillan, 7 Port. (Ala.) 73, 66 Adams v. Jones, 12 Peters, 207, 67, 157, 158 Adams v. Bean, 12 Mass. 139, 73 Adams, Ware v. 24 Me. 177, 9 Adams v. Dansey, 6 Bing. 506, 46 Adams, Kennedy v. 5 Harrington, (Del.) 160, 429 Adams, Brown v. 1 Stew. (Ala.) 51, 47 Adams, Deberry v. 9 Terg. (Tenn.) 52, 18 Adams, Langley v. 40 Me. 125, 435 Adams, FuUam v. 37 Vt. 391, 50, 55 Adams Bank ». Anthony, 18 Pick. 238, 208 Adamson, Jackson v. 7 Blackf. (Ind.) 597, 195 Adcock V. Fleming, 2 Dev. & Bat. 'Law (Nor. Car.) 225, 53, 168 Adger, Bank v. 2 Hill Eq. (So. Car.) 263, 269 Adington, AUen v. 7 Wend. 9, 59 Adkiuson «. Barfield, 1 McCord (So. Car.) 675, 50 Adm'rs of Pond v. Warner, 2 Vt. £32, 190, 191 Admr. of Evans, Exr. of McCall v. 2 Brevard, (So. Car.) 3, 209 (ix) TABLE OF CASES. Section Admr. of Wilson v. Green, 25 Vt. 450, 201, 520 Admire, People v. 39 111., 251, 495 ^tna Insurance Co., Byrne v. 56 111. 321, 82 Mtna, Life Ins. Co., Hough ». 57 111. 318, 82, 260 ^tna Life Ins. Co. v. Mabbett, 18 "Wis. 667, 367 Agawam Woolen Co., Jordan ». 106 Mass. 571, 394 Agawam Bank v. Strever, 16 Barb. (N. T.) 82, . 143 Agawam Bank v. Sears, 4 Gray, 95, ' 333 Agee V. Steele, 8 Ala. 948, 315 Agnew V. BeU, 4 Watts (Pa.) 31, 220 233 Agnew V. Merritt, 10 Minn. 308, 22, 328 Agricultural Bank v.' Bishop, 6 Gray, 317, 305 Aiken v. Cheeseborough, 1 HiU, Law (So. Car.) 172, 53 Aiken v. Duren, 2 Nott & McCord, (So. Car.) 870, 54 • Aiken, Marshall v. 25 Vt. 328, 27 Aiken v. Peay, 5 Strob. Law, (So. Car.) 15, 248 Aiken, Mathews v. 1 New York, 595, 260 Aikenhead, People v. 5 Cal. 106, 464 Allan V. Kenning, 9 Bing. 618, 132 Allan V. Kenning, 2 Moore & Scott, 768, 132 Allaire v. Ouland, 2 Johns. Cas. 52. 46 Albertson v. McGee, 7 Terg. (Tenn.) 106, 396 Albee, Soule v. 31 Vt. 142, 58 Albee v. The People, 22 lU. 533, 30 Albany City Fire Ins. Co. v. T)ev- endorf, 43 Barb. (N. Y.) 444, 317 Albany Dutch Church v. Vedder, 14 Wend. 165, 369 Alcock, Watson v. 4DeGex, Macn. & Gor. 242, 388 Alcock, Watson v. 1 Smale & Gif- fai-d, 319, 388 Section Alcock V. Hill, 4 Leigh (Va.) 622, 298 Alcorn V. The Commonwealth, 66 Pa. St. 172, 207 Alden, State v. 12 Ohio, 59, 295 Aldridge v. Turner, 1 Gill & Johns. (Md.) 427, 6, 68 Aldridge v. Harper, 10 Bingham, 118, 416 Aldricks v. Higgins, 16 Serg. & Rawle, 212, 136 Aldrich v. Ames, 9 Gray, 76, 46, 58 Aldrich ». Chubb, 35 Mich. 350, 84, 85 Aldrich, Mnier v. 31 Mich. 408, 218 Allen V. Bennett, 8 Taunt. 169, 66, 67, 75 Allen V. Coffil, 42 HI. 298, • 154 AUen V. Pike, 3 Cush. 238, 157, 159 Allen, Kay v. 9 Pa. St. 320, 159 Allen V. Hubert, 49 Pa. St. 259, 1 Allen V. Pryor, 3 A. K. Marsh (Ky.) 305, 39, 53 AUenjj. Morgan, 5 Humph. (Tenn.) 624, 10 AUen, Corielle v. 13 Iowa, 289, 17, 309 AUen, BuU v. 19 Conn. 101, 17 Alien, Whitney v. 21 Cal. 233, 403 AUen, State v. 2 Humph. (Tenn.) 258, 431 Allen V. Ayers, 3 Pick. 298, 95 AUen, Wadsworth». 8Gratt. (Va.) 174, 97, 165, 174 Alien, Smith v. Saxton (N. J.) 43; 118 Allen, Stanford v. 1 Cush. 478, 83 AUen, Nichols v. 22 Minn. 288, 53, 85 Allen V. Thompson, 10 Ne-v^Hamp. 32, , 51 Allen V. Adington, 7 Wend. 9, 59 Allen, Bushee v. 31 Vt. 681, 62 Allen V. Scarff, 1 HUton (N.Y.) 209, 62 Allen V. Culver, 3 Denio, 284, 34, 286 AUen V. Wood, 3 Ired. Eq. (Nor. , Car.) 386, 254 AUen V. Morgan, 5 Humph. (Tenn.) 624, 217 AUen V. Jones, 8 Minn. 202, 286 Allen, Gilford v. 3 Met. (Mass.) 255, 301 AUen V. Breslauer, 8 Cal. 552, 437 Allen, SneU v. 1 Swan (Tenn.) 208, 521 TABLE OF OASES. Section Allen ». Eamey, 4 Strob. Law (So. Car.) 30, 454 AUey, Egerton v. 6 Ired. Eq. (Nor. Car.) 188, 204 Alleghany City, Moore v. 18 Pa. St. 55, 447 Alexander, Fowler v. 1 Heiskell (Tenu.) 425, 18 Alexander v. Bates 33 Ga. 125, 434 Alexander, Parker v. 2 La. An. 188, 391 Alexander, Hamar v. 5 Bos. & Pul. 241, 59 Alexander, Abel v. 45 Ind. 523, 298, 307 Alexander v. Bank of Common- wealth, 7 J. J. Marsh, (Ky.) 580, 378 Alexander v. Mercer, 7 Ga. 549, 465 Allison V. Thomas, 29 La. An. 732, 296 Alford V. Irwin, 34 Ga. 25, 430 Algar, Jarman v. 2 Car. & P. 249, 56 Alger V. Scoville, 1 Gray, 391, 50, 58 Allison ». Rutledge, 5 Terg. (Tenn.) 193, 97 AUison V. State. 8 Heisk. (Tenn.) 312, 145 Allison v. Thomas, 29 La. An. 732, 27 Allison, Shaver v. 11 Grant's Ch. R. 855, 345 Allison V. Sutherlin, 50 Mo. 274, 266 Allis, Northwestern Mut, Life Ins. Co. V. 23, Minn. 82 AUmen, Stevens v. 19 Ohio St. 485, 461 Allnutt V. Ashenden, 6 Scott, N. R. 127, 71 Allnutt V. Ashenden, 5 Man. & 6r. 392, 71, 72, 137 Allshouse V. Ramsay, 6 Wharton, (Pa.) 331, 48 AUsbury, United States v. 4 Wal- lace, 186, 106 Alsop V. Price, 1 Douglass (Eng.) 160, 126 Ames, Josselyn v. 3 Mass. 274, 158 Ames, Aldrich v. 9 Gray 76, 46, 58 Ames, Maggs v. 4 Bing. 470, 48 Ament, Perkins v. 2 Head (Tenn.) 110, 94 Section American Bank v. Baker, 4 Met. (Mass.) 164, 345, 370 Amherst Bank v. Root, 2 Met. (Mass.) 522, 144, 869, 474, 479, 519 Amicable Mutual Life Ina. Co. v. Sedgwick, 110 Mass. 163, 341, 344 Amis, Armor v. 4 La. An. 192, 870 Ammons v. Whitehead, 31 Miss. 99, 400 Ammons ». People, 11 111. 6, 462 Ammidon, Towne v. 20 Pick. 535, 117 Amonett, MoKee v. 6 La. An. 207, 272 Anciou V. Guillot, 10 La. An. 124, 12 Anderson, Decker v. 39 Barb. (N. T.) 346, 420 Anderson v. Hyman, 1 H. Black. 120, 64 Anderson v. Harold, 10 Ohio, 399, 75 Anderson,. Low v. 41 loa. 476, 4 Andrews v. Jones, 10 Ala. 400, 38 Ajiderson, Enapp v. 7 Hun, (N. T.) 295, , 409 Anderson, Nelson «. 2 Call, (Va.) 286, 402 Anderson v. Sloan, 1 Colorado, 484, 404 Anderson ». Blakely, 2 Watts & Serg. (Pa.) 237, 137 Anderson, Hodgson v. 5 Dow & Ry. 735,. 52, 735 Anderson, Hodgson v. 3 Bam. & Cress. 842, 52, 53 Anderson v. Hayman, 1 H. Black. 120, 62 Anderson v. Chick, Bailey Ch. (So. Car.) 118, 76 Anderson, Carrington i>. 5 Munf. (Va.) 32, 76 Anderson v. Pearson, 2 Bailey Law (So. Car.) 107, 226 Anderson, Smith's Exrs. v. 18 Md. 620, 227 Anderson v. Walton, 35 Ga. 202, 193. Anderson, Tankersely v. 4 Des. Eq. (So. Car.) 44, 190 Anderson v. Mannon, 7 B. Mon. (Ky.) 217, 309 Anderson v. Longden, 1 Wheaton, 85, 459 xn TABLE OF OASES. Section Andrews v. Marrett, 58 Me. 539, 316 Andrews, Crawford v. 6 Ga. 244, 485 Andrews v. Smith, Tyrwli. & Gr. 173, 49 Andrews v. Smith, 2 Cromp. Mees. & Eos. 627, 49 Andrews v. Vaxrell, 46 New Hamp. 17, 203 Andrews, Spalding v. 48 Pa. St. 411, 63 Andrus v. Chretien, 7 La. 0. S. (4 Curry) 318, 36 Andrus, Meroien v. 10 Wend. 461, 50 Andrus v. Bealls, 9 Cowen, 693, 489 Andre v. Titzhugh, 18 Mich. 93, 407 Andre v. Bodman, 13 Md. 241, 48 Angney, Cole County v. 12 Mo. 132, 105 Annable, Russell v. 109 Mass'. 72, 127 Annett v. Terry, 35 New York, 256, 582 Anniss, Brickwood"®. 5 Taunt. 614, 425 Anon., Brookes' New Cas. 172, 345 Anon., Godbolt, '149, 196 Anthony, Smith v. 5 Mo. 504, 162 Anthony v. PercifuU, 8 Ark. (3 Eng.) 494, 238, 249 Anthony, Adams Bank v. 18 Pick. 238, 208 Antrim, Hatch v. 51 111. 106, 87 Antrobus v. Davidson, 3 Merivale, 569, 192, 205 Anstey v. Marden, 1 Bos. & Pul. N. R. 124, 51 Ansley, Carlos v. 8 Ala. 900, 195 Anspach, Webb v. 3 Ohio St. 522, 457 Archibald, Sievewright v. 17 Ad. & BU. (N. S.) 103, 66 Archer, Gosbell v. 2 Adbl. & Ell. 500, 75, 76 Archer v. Hale, 4 Bingham, 464, 416 Archer v. Hale, 1 Moore & Pa,yne, 285, 416 Archer's Bxr., United States v. 1 Wallace Jr. 173, 117 Archer v. Hudson, 7 Beavan, 551, 345 Archer, Buckner v. 1 McMullen Law (So. Car.) 85, • 532 Ardem v. Rowney, 5 Esp. 254, 53 Section Ardery's Admr., Henderson's Admr. v. 36 Pa. St. 449, 296 Arents ». Commonwealth, 18 Gratt. (Va.)750, _ 34,86 Armstrong, Hawes v. 1 Bing. (N. C.) 761, 68, 70, 71 Armstrong, Newbury v. 6 Bing. 201, 70 Armstrong, Newbury v. 3 Moore & Payne, 509, 70 Armstrong, Newbury v. Moody & Malkin, 389, 70 Armstrong, Hawes v. 1 Scott, 661, 71 Armstrong, Lewis v. 47 Ga. 289, 395 Armstrong, Perry v. 39 New Hamp. 583, 94 Armstrong, Corporation of Huron V. 27 Up. Can. Q. B. R. 533, 349 Armstrong v. Cook, 30 Ind. 22, 348 Armstrong v. State, 7 Blackf. (Ind.) 81, 462 Armstrong 41. United States, Pe- ters' Cir. Ct. R. 46, 443 Armstrong, Harshman v. 43 Ind. 126, 226 Armstrong, Hodges v. 3 Dev. Law (Nor. Car.) 253, 194 Armstrong's Appeal, 5 Watts & Serg. (Pa.) 352. 268 Armstrong, Perry v. 39 New Hamp. 583, 313 Armstead v. Thomas, 9 Ala. 586, 303 Armington v. State, 45 Ind. 10, 452 Armistead v. Ward, 2 Patton, Jr. & Heath, (Va.) 504, 309, 317 Armitage v. Pulver, 37 New York, 494, 252 Armor v. Amis, 4 La. An. 192, 370 Armor, Craddock ». 10 Watts (Pa.) 258, 115 Arms V. Ashley, 4 Pick. 71, 72 Arnot V. Erie R. R. Co. 5 Hun. 608, 3 Arnot V. Erie R. R. Co., 67 New York, 315, 89 Arnold, QuiUen v. 12 Nevada, 234, 407 Arnold v. Stedman, 45 Pa. St. 186, 50 Arnold, Smith v. 5 Mason (C. C.) 414, 76 TABLE OF CASES. Xlll Section Arnold v. Hicks, 3 Ired. Eq. (Nor. Car.) 17, 204 Arnold, Cuxmmngs v. 3 Met. (Mass.) 486. 67 Appleton V. Bascom, 3 Met. (Mass.) 160, 179 Appleton V. Parker, 15 Gray, 173, 317 Applegate, Uhler v. 26 Pa. St. 140, 306, 308 Apperson». Cross, 5 Heisk. (Tenn.) 481, 296 Apgar's Adm'r v. Hiler, 4 Zab. (N. J.) 812, 46, 178, 187, 198 Artcher v. Douglass, 5 Denio, 509, 127 Arrington, Choate ». 116 Mass. 552, 449 Arrington v. Porter, 47 Ala. 714, 524 Ashford v. Bobinson, 8 Ired. 114, 68 Ashford v. Robinson, 8 Ired. Law (Nor. Car.) 114, 119 Ashenden, Allnntt v. 5 Man. & Gr. 392, 71, 72, 137 Ashenden, AUnutt v. 6 Scott N. R. 127, 71 AsUey, Armsw. 4 Pick. 71, 72 Ashley, KiUian v. 24 Ark. 511, 33, 147, 163 Ashby «. Johnston, 23 Ark. 163, 392 Ashby V. Tureman, 3 LitteU (Ky.) 6, 412 Ashby V. Sharp, 1 Littell (Ky.) 156, 394 Ashby's Admx. v. Smith's Exr. 9 Leigh (Va.) 164, 381 Ashford v. Robinson, 8 Ired. Law (Nor. Car.) 114, 53, 84 Ashton V. Bayard, 71 Pa. St. 139, 9, 86 Ashton, Stout v. 5 T. B. Mon. (Ky.) 251, 208 Ashurst V. Ashurst, 13 Ala. 781, 518 Ashdown, West v. 1 Bingham, 164, 425 Askins v. Commonwealth, 1 Duvall (Ky.)275, 432 AspinaU, Ogden v. 7 Dow. & Ry- land, 637, 103 Assurance Co., Benham e. 7 Wels. Hurl. & Gor. 744, 351 Astling, Philips v. 2 Taunt. 206, 172, 345 Section Aston, Sanderson v. Law Rep. 8 Exoh. 73, 347, 368 Athol Machine Co. v. FuUer, 107 Mass. 437, 4 Atherton, State v. 40 Mo. 209, 367, 369 Atkinson, Grayson v. 2 Ves. Sr. 454, 75 Atkinson, Company of Proprietors of the LiTcrpool Waterworks v. 6 East, 507, 138 Atkinson v. Stewart, 2 B. Mon. (Ky.) 348. ■ 255 Atkinson, Semple v. 64 Mo. 504, 317 Atkins V. Baily, 9 Yerg. (Term.) Ill, 530 Atlas Bank v. BrowneU, 9 Rhode Isl. 168, 366, 368, 519 Atlantic and Pacific Telegraph Co. V. Barnes, 64 New York, 385, 368 Atlantic & N. C. R. R. Co. v. Cowles, 69 Nor. Car. 59, 477 Atlanta National Bank «. Doug- lass, 51 Ga. 205. 838 Atwood V. Cobb, 16 Pick. 287, 67 Atlee, Voorhies v. 29 Iowa, 49, 85 Atwell's Admr. v. Towles, 1 Munf. (Va.) 175, 115 Atwood, Dank* v. 119 Mass., 146, 15 Aubert, Castling v. 2 East, 325, 40, 51,56 And V. Magruder, 10 Cal., 282, 17, 148 Auditor, Beimett v. 2 West, Va. 441, 324 Augero v. Keen, 1 Mees. & Wels. 390, 144 Ault, White v. 19 Ga. 551, 21 Austen v. Baker, 12 Modern, 250, 63 Austin V. Richardson, 1 Gratt. (Va.) 310, 15 Austin, Mellendy v. 69 III. 15, 291 Austin, Spaulding v. 2 Vt. 555, 185 Austin, Wright v. 56, Barb. (N. Y.) 13, 292 Austin V. Dorwin, 21 Vt. 38, 801, 306 309 Austin V. Curtis, 31 Vt. 64, 319 Aycock V. Leitner, 29 Ga. 197, 437 TABLE OF OASES. Section Aylesworth, Enos v. 8 Ohio St. 322, 437 Ayer, Brown v. 24 Ga. 288, 27, 121 Ayers, Allen v. 3 Piok. 298, 95 Ayres, Clinton Bank v. 16 Ohio, 288, 95 Ayres, Robbing v. 10 Md. 528, 52 Ayres v. Milory, 53 Mo. 516, 354 Babcock v. Hubbard, 2 Ct. 536, 178 Babcock v. Bryant, 12 Pick. 133, 163 Babcock, In re 3 Story, 393, 205 Baby v. Baby, 8 Up. Caa. Q. B. R. 76, 82, 471 Bacon, Williams v. 2 Gray, 387, 66, 76 Bacon li. Chesney, 1 Starkie, 192, 361 Bacon, Miles v. 4 J. J. Marsh (Ky.) 457, 182 Bacon, Harvey v. 9 Yerg. (Tenn.) 308, 503 Bacot, Doughty v. 2 Desaussure, Eq. (So. Car.) 546, 20 Bachelder v. Fiske, 17 Mass. 464, 238, 248 Backhouse v. Hall, 6 Best v. Smith, 507, 98 Backus V. Shipherd, 11 Wend. 629, 85 Backus, Irwin v. 25 Cal. 214, 532 Badger v. Barnabee, 17 New Hamp. 120, 9 Badgley, Ex parte 7 Gowen, 472, 438 Bagley v. Clark, 7 Bosw. (N. T.) 94, 341 Bagwell, Miller v. 3 McCord, Law (So. Car.) 429, 32 Bagott V. Mullen, 32 Ind. 332, 229 Bagot V. State, 33 Ind. 262, 522 Bagg, Palmer v. 66 New York, 523, 100 Bailey, Clason v. 14 Johns. 484, 66, 75 Bailey v. Ogden, 3 Johns. 399, 67, 75 Bailey v. Freeman, 11 Johns. 221, 73 Bailey, Rapelye v. 3 a. 438, 161 Bailey v. Croft, 4 Taunt. 611, 7 Bailey v. Freeman, 4 Johns. 2S0, 6 Bailey, Higdon v. 26 6a. 426, 17 Bailey, Scott v. 23 Mo. 140, 18 Bailey v. Rosenthal, 56 Mo. 385, 400 Section Bailey ». Seals, 1 Harrington (Del.) 367, 429 Bailey, Coleman v. 4 Bibb. (Ey.) 297 '^^ Bailey v. Hicks, 16 Tex. 229, 182 Bailey v. Edwards, 4 Best & Smith, 761, 328 Bailey, Higdon v. 26 Ga. 426, 374 Bailey, Dinkins v. 23 Miss. 284, 272 Bailey, Rapelye v. 5 Ct. 149, 134 Bailey v. Larehar, 5 Rhode Is. 530, 78 Bailey, Clore v. 6 Bush (Ky.) 77, 478 Bailey v. New, 29 Ga. 214, 209, 608 Baily, Atkins v. 9 Yerg. (Tenn.) Ill, 530 Baird v. Rice, 1 Call, (Va.) 18, 378 Baird, Cowan v. 77 Nor. Car. 201, 349 Baird, Webb v. 27 Ind. 368, 355 Bainton, Mayberry v. 2 Harring- ton (Del.) 24, 10, 169 Bainbridge v. Wade, 16 Ad. & Ell. N. S. 89, 68, 70, 72 Bainbridge, Smith v. 6 Blackf. (Ind.) 12, 169 Bailie, Walsh v. 10 Johns. 180, 97 Baker, Austen v. 12 Modem, 250, 63 Baker, Palmer, v. 23 Up. Can. C. P. R. 302, ■ 67 Baker v. Cornwall, 4 Cal, 15, 68 Baker v. Dering, 8 Adol. & Ell. 94, 75 Baker v. Briggs, 8 Pick, 122, 48, 161, 153, 209, 211, 370 Baker v. Morrison, 4 La. An. 372, 12 Baker, Kerr v. Walker (Miss.) 140, 17 Baker, Currier v. 61 New Hamp. 613, 245 Baker, American Bank v. 4 Met. (Mass.) 164, ■ 345,370 Baker, State ». 64 Mo. 167, 358 Baker, Campbell v. 46 Pa. St. 243, 86, 297 Baker v. Rand, 13 Barb. (N. Y.) 152, 137 Baker v. Kennett, 54 Mo. 82, 128 Baker, Riddle v. 13 Cal. 295, 91 Baker v. KeUogg, 29 Ohio St. 663, 503 Baker v. Preston, 1 Gilmer (Va.) 235, 522 TABLE OF OASES. XV Sectiok Baker, King v. 7 La. An. 570, 448 Baker, Hammock v. 3 Bush. (Ky.) 208, 421 Baldwin, Payne v. 14 Barb. (N. T.) 570, 63 Baltimore & Ohio R. R. Co., Straw- bridge V. 14 Ind. 360, 343 Baloombe, Kingsley v. 4 Barb. (N. T.) 131, 47, 55 Baldwin, Metzner v. 11 Minn. 150, 18 Baldwin, Lartigue v. 5 Martin 0. S. (La.) 193, 12, 524 Baldwin, Lee v. 10 Ga. 208, 384 Baldwin, Preble v. 6 Cusb. 549, 58 Baldwin, Derry Bank v. 41 New Hamp. 434, 28 Baldwin, King v. 2 Johns. Ch. E. 554, 205, 206 Baldwin, King v. 17 Johns, 384, 206, 210 Baldwin v. Gordon, 12 Martin, (La.) 0. S. 378, 121, 206 Baldwin v. Western Reserve Bank, 5 Ohio, 273, 299 Baldwin, University of Cambridge, V. 5 Mees. & Wela. 580, 99 Ballard v. Brummitt, 4 Strobh. Eq. (So. Car.) 171, 493 Ballard, Russell «. 16 B. Mon. (Ky.) 201, 95 Ballard, Cross v. 46 Vt. 415, 115 Ballard, Daniel v. 2 Dana, (Ky.) 296, 229, 254 Ball, "Wild Cat Branch v. 45 Ind. 213, 357 Ball V. Gilson, 7 Upper Can. C. P. R. 531, 17 Ball, Stamford, &c.. Banking Co. 4 DeGex, Fish, and J. 22 Bales V. State, 15 Ind. 321, 466 Bampton v. Paulin, 4 Bing. 264, 49, 51, 54 Bamford v. lies, 3 Wels. Hurl. & Gor. 380, 142 Bank of the Old Dominion, Mc- Veigh V. 26 Gratt (Va.) 785, 381 Bank of Kingston, Chester v. 16 New York, 836, 293 Bank of Mobile, Cm-ry v. 8 Port. (Ala.) 360, 333 Seotion Bank of Lansingburgh, Nevins v. 10 Mich. 547, 67 Bank of Orleans v. Barry, 1 Denio, 116, 155 Bank of Illinois v. Sloo, 16 La. (CmTy) 539, 157 Bank of St. Albans v. Smith, 30 Vt. 148, 17, 89 Bank of Brighton ». Smith. 5 AUen, 413, 13 Bank of Penn Townshio, McMul- hn ». 2 Pa. St. 343, " 189 Bank of Missouri v. Matson, 26 Mo. 243, 19 Bank' of Upper Canada v. Thomas, 11 Up. Can. C. P. R. 515, 19 Bank of Albion v. Burns, 46 New York, 170, 22 Bank of Whitehaven, Dawson «. Law Rep. 4 Ch. Div. 639, 22 Bank at Decatur v. Johnson, 9 Ala. 621, 391 Bank of Gettysburg v. Thompson, 3 Grant's Cases (Pa.) 114, 886 Bank of Pennsylvania, Manufac- turers' and Mechanics' Bank, v. 7 Watts & Serg. 335, 27 Bank of Mount Pleasant, Spriggj). 10 Peters (U. S.) 257, 28 Bank of Burlington v. Beach, 1 Aiken (Vt.) 62, 94 Bank of Com. v. McChord, 4 Dana (Ky.) 191, 331 Bank of Limestone v. Penick, 5 T. B. Mon. (Ky.) 25, 332 Bank of Limestone ». Penick, 2 T. B. Mon. (Ky.) 98, 332 Bank of Orleans, Boughton v. 2 Barb. Ch. R. 458, 244 Bank of Rutland, West v. 19 Vt. 403, 178 Bank of Alabama v. M'Dade, 4 Port. (Ala.) 252, 188 Bank of Scotland, Smith v. 1 Dow 272, 367 Bank of America, Kirfcman v. 2 Cold. (Tenn.) 897, 214 Bank of Toronto v. Wilmot, 19 Up. Can. Q. B. R. 73, . '341 XVI TABLE OF OASES. Section Bank of Upper Canada v. Covert, 5 Up. Can. K, B. R. (0. S.) 541, 342 Bank of Washington v. Barring- ton, 2 Pen. & Watts (Pa.) 27, 344 Bank of U. S. McGill v. 12 Whea- ton, 511, 344 Bank of U. S. v. MagiU, 1 Paine, 661, 344 Bank of Lansingburg, Ives v. 12 Mich. 361, 370 Bank of Kingston, Chester v. 16 New York, 336, 372 Bank at Mobile, Hetherington v. . 14 Ala. 68, . 382 Bank of Missouri v. Matson, 24 Mo. 333, 381 Bank of Commonwealth, Alexan- der V. 7 J. J. Marsh. (Ey.) 580, 378 Bank of Steubenville v. Leavitt, 5 Ohio, 208, 325 Bank of Montreal, Gumming v. 15 Grant's Ch. E. 686, 312 Bank of Mobile, Ige v. 8 Port. (Ala.) 108, 313 Bank of Pennsylvania v. Potius, 10 Watts (Pa.) 148, 320 Bank of Kentucky, Pendleton v. 1 T. B. Mon. (Ky.) 171, 319 Bank of Middlebury v. Bingham, 83 Vt. 621, 304 Bank of Wilmington & Brandy- wine, McDowell V. 2 Del. Ch. R. 1, 296 Bank of Orleans, Wilson «. 9 Ala. 847, 303 Bank of Albion v. Bums, 46 New York, 170, 296 Bank of Bengal v. Radakissen Mitter, 4 Moore's Privy Council Cas. 140, ' 286 Bank of Cumberland, Hopewell v. 10 Leigh (Va.) 206, 285 Bank of United States v. Stewart, 4 Dana (Ky.) 27, 283 Bank v. Douglass, 4 Watts (Pa.) 95, 283 Bank of Virginia v. Boisseau, 12 Leigh (Va.) 387, 285 Bank of Toronto v. Hunter, 4 Bos- worth (N. Y.) 646, 262 Section Bank of HopkinsviUe v. Rudy, 2 Bush (Ky.) 326, _ 268 Bank of Pennsylvania v. Potius, 10 Watts (Pa.) 148, 266, 267, 486 Bank of the State of Missouri, Fur- nold V. 4A Mo. 336, 281 Bank of Montreal v. McPaul, 17 Grant's Ch. R. 234, 123 Bank of British North America v. CuviUier, 14 Moore's Privy Coun- cil Cas. 187, 145 Bank of Middlebury v. Bingham, 33 Vt. 621, 94 Bank of New York v. Livingston, 2 Johns. Cas. 409, 86 Bank of Montpelier v. Joyner, 33 Vt. 481, 94 Bank of Newbury v. Richards, 35 Vt. 281, 94 Bank of U. S. Conway v. 6 J. J. Marsh (Ky.) 128, 95 Bank of Kentucky, Pendleton v. 1 T. B. Mon. (Ky.) 171, 479, 521 Bank of Brighton v. Smith, 12 Al- len, 243, 478, 521 Bank of the Northern Liberties v. Cresson, 12 Serg. & Rawle (Pa.) 308, 444 Bank v. Munford, 6 Ga. 44, 505 Bank v. Knotts, 10 Richardson Law(So. Car.) 543, 120, 173 Bank v. Estate of Leavenworth, 28 Vt. 209, 319 Bank v. Adger, 2 HiU Eq. (So. Car.) 262, 269 Bank v. Pordyce, 9 Pa. St. 275, 34, 378 Bank v. Leland, 5 Met. (Mass.) 259, 376 Bank, South Carolina Manf. Co. v. 6 Rich. Eq. (So. Car.) 227, 217 Bank.-y. Hammond, 1 Rich. Law {So. Car.) 281, 170 Bank v. KUngensmith, 7 Watts (Pa.) 523, 206 Bank of Wooster v. Stevens, 6 Ohio St. 262, 202 Bank, Spaldmg v. 9 Pa. St. 28, 214 Bank v. Mumford, 6 Ga. 44, 17 Bank v. Haskell, 51 New Hamp. 116, 211, 360 TABLE OF OASES. XVil Section Bank, McDowell v. 1 Harrington (Del.) 369, 27, 376 Banks v. Brown, 4 Yerger (Tenn.) 198, 396 Banks, White v. 21 Ala. 705, 234 Banks, Stovall v. 10 Wallace 583, 496 Banks, Davis v. 45 Ga. 138, 9 Banks' Exrs., Mountg'oy v. 6 Munf. (Va.) 387, 198 Bankston, Goffi>. 35 Miss. 518, 349 Bangs 4>. Strong, 7 Hill (N. Y.) 250, 27, 313 Bangs V. Strong, 4 New York 315, 27 Bangs V. Strong, 10 Paige Ch. R. 11, 299 Bangs V. Mosher, 23 Barb. (N. Y.) 478, 317 Bane, Roberts v. 32 Texas, 385, 328 Banning, Wolf v. 3 Minn. 202, 22 Bancroft v. Pearce, 27 Vt. 668, 197 Bancroft v. Abbott, 3 Allen, 524, 194 Barickman v. Kuykendall, 6 Blackf. (Ind.) 21, ' 66 Barney v. Patterson, 6 Harr. & Johns. (Md.) 182. 66 Barney, Peek?). 13 Vt. 93, 158,170, 175 Barney, Daniels v. 22 Ind. 207, 11 Barney v. Clark, 46 New Hamp. 514, 212, 381 Barney, Poster v. 3 Vt. 60, 83 Barney v. Grover, 28 Vt. 391. 177 Barney, Gaston v. 11 Ohio St. 506, 286 Barnes, Hanson v. 9 Gill & Johns. (Md.) 359, 66 Barnes v. Mott, 64 New York, 397, 21, 395 Barnes, Atlantic and Pacific Tele- graph Co. V. 64 New York, 385, 868 Barns v. Barrow, 61 New York, 39, 97 Barnes, Hotchkiss v. 34 Ct. 27, 130, 131 Bartol, Freeport v. 3 Greenl. (Me.) 340, ■» 66 Ban-ett, Lapham v. 1 Vt. 247, 70 Barrett, Sisson v. 2 New York, 406, 17 Barrett, Duff v. 17 Grant's Ch. R. 187, 325 Ban-ett, Duff v. 15 Grant's Ch. R. 632, 325 Barrett, Clark v. 19 Mo. 39, 503 B Section Barret, Perry®. 18 Mo. 140, 506, 512 Barnum, Childs v. 11 Barb. (N.Y.) 14, 70 Barry, Bank of Orleans v. 1 Denio, 116, 155 Ban-y v. Law, 1 Cranch (0. C.) 77, 75 Barry v. Ransom, 12 New York, 462, 46, 226 Barry, Rice v. 2 Cranch C. C. 447, 54 Barnard v. Heydrick, 49 Barb. (N. Y.) 62, 75 Barnard, Lyde v. Tyrwh. & Gr. 250, 59 Barnard, Sampson v. 98 Mass. 359, 336 Barnard v. Darling, 11 Wendell, 28, 489 Barstow v. Gray, 3 Greenl. (Me.) 409, 75 Barrows ». Lane, 5 Vt. 161, 153 Barefoot's Exrs., Simmons v. 2 Hay. (Nor. Car.) 606, 5 Barrel! v. Trussell, 4Taunt. 117-20, 6, 51, 68 Bamabee, Badger !>. 17 New Hamp. 120, 9 Bartlett v. Willis, 3 Mass. 86. 12 Bartlett, Wright v. 43 New Hamp. 548, 300, 329 Bartlett, State v. 30 Miss. 624, 444 Bartley v. Yates, 2 Hen. & Mun. (Va.) 398, 15 Barker, Smith v. 6 Watts (Pa.) 508, 431 Baron, Admr. Raney v. 1 Pla. 327, 404 Barber v. Bucklin, 2 Denio, 45, 52, 55, 58 Barber, Swain v. 29 Vt. 292, 240 Barber v. Burrows, 51 Cal. 404, 323 Barber, Starrett v. 20 Me. 457, 94 Barker, Warren v. 2 Duvall (Ky.) 155, 59 Barker v. Scudder, 56 Mo. 272, 169 Barker, Frye v. 4 Pick. 382, 120, 208 Barker, Price v. 4 EUis & Black. Barker v. Buel, 5 Gushing. 519, 213 Barker®. MoClure, 2 Blackf. (Ind.) 14, 321, 325 Barker, Bill v. 16 Gray, 62, 98 Barker v. Parker, 1 Dum. & East. 287, 99 XVI] 1 TABLE OF CASES. Section Barker, Lanusee v. 3 Wheaton, 101, 114 Barker v. Scudder, 56 Mo. 272, 53 Barfield, Adkinson v. 1 McCord, (So. Car.) 575, ' 50 Bamback «. Reiner, 8 Minn. 59, 199 Barrow, Stewart v. 55 Ga. 664, 200 Barrow v. Sh elds, 13 La. An. 57, 870 Barrow, Rhinelander v. 17 Johns. 538, 295 Barrow, Bams r. 61_New York, 39, 97 Barrow, Welsh v. 9 Robinson (La.) 585, 443 Barnhill, Peters v. 1 Hill Law, (So. Car.) 234, 181. 184 Barger, Blandford's Adm'r v. 9 Dana (Ky.) 22, 382 Barrington, Bank of Washington V. 2 Pen. & Watts (Pa.) 27, 344 760, 329 Barbour, Phares v. 49 111. 370, 372 Bartlow v. Boude, 3 Dana (Ky.) 591, 380 Bardwell v. LydaU, 5 Moore & Payne, 827, 286 Bardwell v. LydaU, 7 Bing. 489, 286 -Barnett v. Smith, 17 111. 565, 99 Barclay v. Lucas, 3 Douglass, 321, 101 Barclay v. Lucas, 1 Dum. & East. , 291, note, 101 jBarstow, Wood v. 10 Pick. 368, 82 'Barstow, Perkins v. 6 Rhode Is. 505, 120 'Barnitz, Egei). 8Pa, St.304, 84 Barman v. Carhartt, 10 Mich. 338, 83 ••Baranger v. Warden. 12 Cal. 311, 52 Bass, Hobson v. Law Rep. 6 Chan- cery Appl. Cas. 792, 219 ■Bascom, Appletoni;. 3 Met. (Mass.) 160, 179 Bashford ». Shaw, 4 Ohio St. 264, 173 Bassett, Furber v. 2 Duvall (Ky.) 433, 299 Baskiu v. Godbe, 1 Utah, 28, 296 Bastow V. Bennett, 3 Camp. 220, 134 Bashford v. Shaw, 4 Ohio St. 264, 85 Bateman v. Phillips, 15 East. 272, 67 Bateman, Phillips v. 16 East. 356, 68 ■Batchelor, Boom v. 1 Hurl. & Nor. 225, 70 Section Bate, Hunt v. 3 Dyer, 272 (a) 9 Bates, Alexander v. 33 Ga. 125, 434 Bates, admr. Cain v. 35 Mo. 427, 392 Bates ». StaiT, 6 Ala. 697, 63 Bates, Beach v. 12 Vt. 68, 385 Bates, Pickett ». 3 La. An. 627, 177, 182 Bates, Darst v. 51 111. 439, 199, 282 Bates, Puckett v. 4 Ala. 390, 61 Bates, Beach v. 12 Vt. 68, 85 Bates ». Branch Bank at Mobile, 2 Ala. 689, 503 Bates V. State Bank, 7 Ark. (2 Eng.) 394, 504 Bates, State v. 86 Vt. 387, 476 Bates, Treasurers v. 2 Bailey Law (So. Car.) 862, 518 Bates, State v. 36 Vt. 387, 445 Bates, Supervisors of RenseUaer v. 17 New York, 242, 446 Bates, Treasurer v. 2 Bailey Law, (So. Car.) 862, 443 Bateson v. Gosling, Law Rep. 7 Bateman, Mallet v. Law Rep. 1 C. P. 168 ; S. C. 16, J. Scott, N. S. 580, 60, 61 Batturs v. Sellers, 5 Harr. & Johns. (Md.) 117, 76 BatUe V. Hart, 2 Dev. Eq. (Nor. Car.) 81, 219 Battle V. Blake, 1 Dev. Law (Nor. Car.) 381, 85 Com. PI. 9. 123 Baumann v. James. Law R. 3 Ch. App. 508, 67 Baugher's Exrs. ». Duphom, 9, Gill (Md.) 314. 291 Baxter, Downer v. 30 Vt. 467, 187 Baxter v. Marsh, 1 Yerg. (Tenn.) 460, 515 Bayard, Ashton v. 71 Pa. St. 189, 9, 86 Bay V. Tallmadge, 5 John's Ch. 305, 27 Bay City, McCormick v. 23 Mich. 457, 856 Bay City, Stevenson v. 26 Mich. 44, 355, 452 Beardsley, Castle v. 10 Hun, 343, 68 Bearden, Hazen v. 4 Sneed (Tenn.) 48, 63 Beardslee, Buckley v. 2 South, 572, 68 TABLE OF CASES. XIX Section Bean, Adams v. 12 Mass. 139, 73 Bean v. Valle, 2 Mo. 103, 68 Bean, Coleman v. 1 Abbott's Rep. Om. Cas. (N. Y.) 394, 29, 353 Bean v. Parker, 17 Mass. 591, 127 Bean, Sanders ». Busbee's Law, (Nor. Car.) 318, 487 Beach v. Bates, 12 Vt. 68, 85, 385 Beach, Bank of Burlington v. 1 Aiken (Vt.) 62, 94 Beach v. Boynton, 26 Vt. 725, 503 Beach, Wood v. 7 Vt. 522, 72 Beale, Crofts v. 11 Com. B. 172, 8 Bearsh, Sears v. 7 La. An. 539, 404 Beavan, Bushnell v. 1 Bing. N. C. 103, 50, 60, 71 Beavan, Bushnell v. 4 Moore & Scott, 622, 60 Beatty, Union Bank v. 10 La. An. 378, 359 Beaman v. Blanchard, 4 Wend. 432, ' 223 Beaver v. Beaver, 23 Pa. St. 167, 195 Beaver, Fleming ». 2 Rawie (Pa.) 128, 270 Beal t). Brown, 13 Allen, 114, 196 Beardsley, Warner v. 8 Wend. 194, 206 Beaubien v. Storey, Spears Eq. (So. Car.) 508, 374 Beard, State v. 11 Robinson (La.) 243, 323 Beabout, Watson v. 18 Ind. 281, 115 Beall V. Cochran, 18 Ga. 38, 125 Beavans, Wilson v. 58 Ills. 232, 53 Bealls, Andrus v. 9 Cowen, 693, 489 Beckett, Pitts v. 13 Mees. & Wels. 743, 66, 76 Beckett, Chater v. 7 Term R. 201, 38 Beckley v. Eckert, 3 Pa. St. 292, 36 Beckham v. Pride, 6 Richardson Eq. (So. Car.) 78, 244 Beckwith. Lowe v. 14 B. Monroe, (Ky.)150, 131,163, 168 Beckman, Remsen v. 25 NewTork, 552, 206 Beckman, Thomas v. 1 B. Mon. (Ey.) 29, 525 Beckman, Thomas v. 1 B. Mon. (Ey.) 29, 184 Section Beckley v. Munson, 22 Ct. 299, 187 Bechtel, Hoffman v. 52 Pa. St. 190, 85 Beckwith, Newman v. 5 Lansing, (N.T.) 80, 487 Beck, Taylor.!). 13 111. 376, 208 Bedell, Sharp v. 5 Gilman (111.) 88, 393 Bedford, Kenninghamc. 1 B. Mon. (Ey.) 325, 309 Beezely, Welford v. 1 Ves. Sr. 6, 75 Beebe v. Dudley, 26 New Hamp. 249, 159, 173 Beekman v. Ha,le, 17 Johns, 134, 161 Beeson's Admr., Beeson v. 1 Har- rington (Del.) 466, 429 Beeket, Chater v. 7 Term R. 201, 50 Beesly v. Hamilton, 50 111. 88, 349 Beehervaise v. Lewis, Law Rep. 7 Com. PI. 372, 203 Beers, Swift v. 3 Denio, 70, 121 Beech, Union Bank v. 3 Hurl. & Colt. 672, 123 Beeker v. Saunders, 6 Ired. Law (Nor. Car.) 380, 85 Beebe, Musick v. 17 Eansas, 47, 496 Behm, Stewart v. 2 Watts (Pa.) 356, 127 Bell V. Welch, 9 Man. Gr. & Scott, 154, 71 Bell V. Manning, 11 Grant's Ch. R. 142, 123 Bell, Gates v. 3 La. An. 62, 10 Bell V. Rawson, 30 Ga. 712, 431 Bell, Rayner v. 15 Mass. 377, 440 Bell, Macdonald v. 3 Moore's Priv. Co. Cas. 315, 892 Bell V. Jasper, 2 Iredell's Eq. (Nor. Car.) 597, 252 Bell, Agnewi;. Watts. (Pa.) 31, 220, 233 Bell V. Norwood, Louisiana (4 Cur- ry) 95, 98 Bell, Dickason v. 13 La. An. 249, 125 BeU V. Bruen, 1 How. (U. S.) 169, 78 Bell, Evans v. 45 Texas, 553, 84 Bell, Clark v. Humph. (Tenn.) 26, 194 Bell, McNary v. 5 Robinson (La.) 418, 528 Bell, Inhabitants of Colerain v. 9 Met. (Mass) 499, 468 Bell, Clark ». 2 Littell (Ey.) 164, 420 XX TABLE OF CASES. Section Bell's Admr. v. Jasper, 2 Ired. Eq. (Nor. Car.) 597, 222 Belches, West ». 5 Munford (Va.) 187, 234 Belcher v. Smith, 7 Cush. 482, 154 Belt, McCune v. 45 Mo. 174, 225, 233 Belding v. State, 25 Ark. 315, 431 Belloni v. Freeborn, 63 New York, 383, 190 Bellame v. Wallace, 2 Eich. Law (So. Car.) 80, 213 Bellows V. Lovell, 5 Pick. 307, 381 Bellingham v. Freer, 1 Moore's Priv. Cou. Cas. 333, 316 Belfast Banking Co. v. Stanley, Irish Rep. 1 Com. Law, 693, 296 Belloni v. Freeborn, 63 N. T. 383, 78 Belanger, Verret i>. 6 La. An. 109, 532 Belfleld Union, ». Pattison 1 Hurl. & Gor. 623, 487 Belfleld Union v. Pattison, 2 Hurl. & Gor. 523, 473 Bennet, Allen v. 3 Taunt. 169, 66, 67, 75 Bennett, Eastman v. 6 Wis. 232, 70 Bennett, Lord Harberton v. Beatty, (Ir. Ch.) 386, 21, 373 Bennett v. Buchanan, 3 Ind. 47, 181 Bennett v. Bowling, 22 Texas, 660, 187 Bennett v. The Auditor, 2 West Va. 441, 324 Bennett, Bastow v. 3 Camp. 220, 134 Bent V. Cobb, 9 Gray, 3:17, 76 Bentham ». Cooper, 5 Mees. & Wels! 621, 71 Benton v. Fletcher, 31 Vt. 418, 154 Benton v. Pratt, 2 Wend. 385, 59 Benton v. Gibson, 1 Hill' (So. Car.) 56, 172 Benton, Bird v. 2 Dev. Law (Nor. Car.) 179, 190 Benton, Bigelow v. 14 Barb. (N. Y.) 123, 112 Benton, State v. 48 New Hamp. 551, 440 Benton v. Gibson, 1 Hill, Law (So. Car.) 56,- 84 Benton v. Fletcher, 31 Vt. 318, 84 Benson, Wood v. 2 Cromp. & Jer. 94, 9, 38 Section Benson, Wood v. 2 Tyrwh. 93, 38 Bengal Government, Lalla Bun- seedhur v. 14 Moore's Indian Appeal, 86, 463 Bently v. Harris's Admr. 2 Gratt. (Va.) 357, 415 Bently v. Harris' Admr. 2 Gratt. (Va.) 858, 222 Bentley, Weed v. 6 Hill (N.T.) 56, 201 Benham v. Assurance Co. 7 Wels. Hurl & Gor. 744, 351 Bpntly V. Gregory, 7 T. B. Mon. (Ky.) 368, 198 Benedict & Miner, 58 111. 19, 334 Benedict, Stamford Bank v. 15 Ct. 487, 265, 286 Benedict v. SheriU, Lalor's Sup. to Hill & Denio, 219, 96 Benedict, Thrall v. 13 Vt. 248, 94 Benefield, Eaton v. 2 Blackf. (Ind.) 52, 494 Berry, Bryan v. 6 Cal. 394, 10, 148 Berry, Paul v. 78 111. 158, 20 Berry, State v. 34 Ga. 546, 429 Berkey, Miller v. 27 Pa. St. 317, 388 Berkly, Morrison ». 7 Serg. & Rawle (Pa.) 238, 181 Berand, Chase v. 29 Cal'. 138. 400 Berrington, Rees v. 2 Ves. Jr. 540, 205, 817 Berthold, Admx. v. Berthold, 46 Mo. 557, 260 Berg V. RadclifiF, 6 Johns. Ch. 302, 118 Berheim, Teller v. 3 Phila. (Pa.) 299, 84 Berkowitz, Hendrie v. 87 Cal. 113, 537 Besshears v. Eowe, 46 Mo. 501, 9 Best V. Stow, 2 Sandf. Ch. 298, 252 Besore v. Potter, 12 Serg. & Rawle (Pa.) 154, ■ 118 Bessinger v. Dickerson, 20 Iowa 260, 481 Betheme v. Dozier, 10 Ga. 285, 328, 504 Bevaus, Wilson v. 58 111. 232, 49 Bewley v. Whiteford, Hayes (Irish Rep.) 356, ^ 71 Beyerle v. Hain, 61 Pa. St. 226, 467 Bibb, Ellis v. 2 Stew. (Ala.) 63, 296, 300 TABLE OF CASES. XXI Section Bibb V. Martin, 14 Smedes & Mar. (Miss.) 87, 284 Bicknell, Gill v. 2 Gush. 355, 76 Biokneil, Evans «. 6 Vesey, Jr. 174, 59 Bickford v. Gibbs, 8 Cusb. 154, 7, 175 Bickford, Blodgett v. 30 Vt. 731, 212 Bidwell, Parker v. 3 Ct. 84, 427 Bigelow, Dorman v. 1 Fla. 281, 73, 74 Bigelow, Cahill v. 18 Pick. 369, 61, 62 Bigelow, De Witt v. 11 Ala. 480, 296 Bigelow V. Benton, 14 Barb. (N. Y.) 128, 112 BigeloTD. Bridge, 8 Mass. 275, 140 Bigelow V. Comegys, 5 Obio St. 256, 420 Billings, Manufacturers' Bank v. 17 Pick. 87, 295 Billingsby, Day v. 3 Busb. (Ky.) 157, , 516 Bill V. Barker, 16 Gray, 62, 98 Bing, Smith v. S'Obio, 33, 242 Bingham, Blydenburgh v. 38 New York, 371, , 375 Bingham, Bank of Middlebury v. 83 Vt. 621, ' ■ 94, 304 Bingham, County of Wapello v. 10 Iowa, 89, 464 Binz V. Tyler, 79 111. 248, 106 Binsse v. Wood, 37 New York, 526, 91 Bivins v. Helsey, 4 Met. (Ky.) 78, 349 Burkrayr v. Darnell, 1 Salk. 27;.Zc?. 2 Ld. Eaym. 1,085, 63 Bird V. Blosee, 2 Vent. 361, 66 Bird V. Boulter, 4 Barn. & Add. 448, 76 Bird V. Gammon, 3 Bing. N. C. 888, 48 Bird V. Benton, 2 Dev. Law (Nor. Car.) 179, 190 Bird, Sacramento Co. v. 31 Cal. 66, 472 Bird V. Gammon, 5 Scott, 213, 50 Bird, State v. 2 Eicbardson Law (So. Car.) 99, 459 Birckbeadt). Brown, 5 Hill, 634, 67, 96 Birckhead v. Brown, 2 Denio, 376, 96 Birge, Claiborne v. 42 Texas, 98, 314 Section Birkey, Butler v. 13 Ohio St. 514, 281 Birchim, State v. 9 Nevada, 95, 439 Bissell, Butler v. 1 Root (Ct.) 102, 486 Bissell V. Saxton, 66 New York, 55, 466, 522 Bishop, Pidcock v. 3 Barn. & Cress. 605, ' 866 Bishop V. Day, 13 Vt. 81, 192 Bishop, Tousey v. 22 Iowa, 178, 315 Bishop, Agricultural Bank v. 6 Gray, 317, 305 Bishop, Hidden v. 5 Rhode Is. 29, 291 Bittiok u.Wilkins, 7Heisk. (Tenu.) 307, 277 Bizzell V. Smith, 2 Dev. Eq. (Nor. Car.) 27, 208 Blair v. Snodgrass, 1 Sneed(Tenn.) 1, . 66 Blair, Curtis v. 26 Miss. 809, 76 Blair, State v. 82 Ind. 313, 335 Blair v. Perpet. Ins. Co. 10 Mo. 559, 348, 521 Blair, Planters' and Merchants' Bank v. 4 Ala. 613, 94 Blair, Broyles v. 7 Yerg. (Teim.) 279, 418 Blatohford v. MQliken, 35 111. 484, 148 Blanchard, Dexter v. 11 AUen, 865, 44 Blanchard,Mann v. 2 Allen 886, 59 Blanchard, Gibbs v. 15 Mich. 292, 62 Blake v. Cole; 22 Pick. 97, 46 Blake, White v. 22 Wend. 612, 429 Blake, Drisooll v. 9 Irish Ch. R. 356, 29 Blake v. Downey, 51 Md. 487, 176 Blake v. White, 1 Younge & Coll. (Exch.) 420, 305 Blake, State v. 2 Ohio St. 147, 124 Blake, Battle v. 1 Dev. Law (Nor. Car.) 381, 85 Black's Exr's, Martin v. 20 Ala. 809, 47 Black River Bank v. Page, 44 New York, 458, 390 Blade, Sherman v. 49 Vt. 198, 230 Black, Irick ». 2 C. E. Green (N. J.) 189, 192 Black V. The Ottoman Bank, 15 Black, Carter v. 4 Dev. & Bat. Law (Nor. Car.) 425, 180 XXll TABLE OF CASES. Section Blackiston, Morgan v. 5 Har. & Johns. (Md.) 61, 411- Blackwell v. Wilson, 2 Richardson Blackstone Bank v. Hill, 10 Pick. 129, 805 Blackmcre, King v. 72 Pa. St. 347, 288 Blackney, Dauber «. 38 Barb. (N. Y.) 432, ' 53 Blackburne v. Boker, 1 Pa. Law Jour. Rep. 15, 86 Blackford, People v. 16 111. 166, 469 Law (So. Car.) 322, 428 Blazer v. Buudy, 15 Ohio St. 57. 27 Blagden v. Bradbear, 12 Vesey 466, 76 Blanton, Jones v. 6 Iredell's Eq. (Nor. Car.) 115, 382 Blanchard, Beaman v. 4 Wend. 432, 223 Blanton, Jones v. 6 Ired. Eq. (Nor. Car.) 115, 232 Blandford's Adm. o. Barger, 9 Dana (Ky.) 22, 382 Blanton, Jones v. 6 Ired. Eq. (Nor. Car.) 115, 255, 461 Moore's Priv. Con. Cas. 472, 368 Blaine v. Hubbard, 4 Pa. St. 183, 326 Blakely, Newoomb v. 1 Mo. Appl. R. 289, 319 Blazer v. Bundy, 15 Ohio St. 57, 307 Blalock V. Peak^ 3 Jones Eq. (Nor. Car.) 323, -^ . 277 Blakeley, Anderson v. 2 Watts & Serg. (Pa.) 237, 137 Bland, Smith v. 7 B. Mon. (Ky.) 21. 499 Blache, Mayor v. 6 La. (Curry) 500, 369, 476 Blakemore, State v. 7 Heiskell (Tenn.) 638, ^ 93 Bleakley v. Smith, 11 Simons, 150, 75 Blest V. Brown, 4 De Gex, Pish. & Jones, 367, W. 3 Giffard, 450, 348 Bledsoe v. Nixon, 68 Nor. Car-. 521, 273 Bleeker v. Hyde, 3 McLean, 279, 97 Bliss, Bull V. 30 Vt. 127, 84, 168 Blosee, Bird v. 2 Vent. 361, 66 Biore V. Sutton, 3 Merivale, 237, 75 Blood, Firman v. 2 Kansas, 496, 147 Blood V. Hardy, 15 Me. 61, 76 Section Blow ». Maynard, 2 Leigh (Va.) 29, 182 Block, Kock V. 29 Ohio St. 565, 185 Blodgett V. Bickford, 30 Vt. 731, 212 Blodgett, Gannett v. 39 New Hamp. 150, 266 Bluck, Chapman v. 5 Scott, 515, 66 Blunt, Simpson v. 42 Mo. 542, 508 Blydenburgh, Ogden v. 1 Hilton, (N. Y.) 182, 16 Blydenburgh v. Bingham, 38 New York, 371, 375 Boardman, Gilligan v. 28 Me. 81, 68 Boardman v. Spooner, 13 Allen, 353, 76 Boardman v. Gillighan v. 29 Me. 79, 7, 173 Board of Trustees, Ladd v. 80 lU. 233, 353 Board pf Police of Clark Co. v. Covington, 26 Miss. 470, 298, 323 Board of Comm'rs, Davis v. 72 Nor. Car. 441, , 194 Board of Supervisors v. Otis, 62 New York, 88, 474 Board of Supervisors of Jefferson Co. V. Jones, 19 Wis. 51, 476 Board of Commissioners, Driskill v, 53 Ind. 532, 505 Bochmer v. County of Schuylkill, 46 Pa. St. 452, 446 . Bodman, Andre v. 13 Md. 241, 48 Boddam, East India Company v. 9 Vesey, 464, 118 Boaz, ElHott v. 13 Ala. 535, 361 Boatt V. Brown, 13 Ohio'St. 364, 331, 334 Boaler v. Mayor, 19 J. Scott, (N. S.) 76, 329 Boehm v. Campbell, 8 Taunt. 679, Id. 3 Moore 15 70 Boehne v. Murphy, 46 Mo. 57, 132 Boecker, United States v. 21 Wal- lace, 652, 844 Bodey, Holt v. 18 Pa. St. 207, 378 Bogarth v. Breedlove, 75 111. 561, 333 Boggs. V. State, 46 Texas, 10, 477, 610 Bohlens, Mailer v. 2 Wash. C C 378, ■ 57 TABLE OF OASES. XXIU Section Bohannon v. Comba, 12 B. Mon. (Ky.).563, 227 Boisseau, Bank of Virginia v. 12 Leigh (Va.) 387, 285 Boice V. Main, 4 Denio, 55, 487 Boker, Blackburne v. 1 Pa. Law Jour. Rep. 15, 86 Boiling «. Doneghy, 1 Duvall, (Ky.) 220, 254 Boiling, Lyon v. 9 Ala. 463, 270 Bold, London Assurance Co. v. 6 Add. & Bll. (N. S.) 514, 98 Bomar v. Wilson, 1 Bailey La^r (So. Car.) 461, 443 Bonar v. Macdonald, 3 House of Lords Cases, 226, 242 Bonner, Tatum v. 27 Miss. 760, 88 Bonney v. Seely, 2 Wend. 481, 181 Bonney v. Seely, 2 Wend. 481, 182, 187 Bonney v. Bonney, 29 Iowa, 448, 370 Bonta V. Curry, 3 Bush. (Ky.) 678, 385 Bonta V. Mercer County Court, 7 Bush (Ky.) 576, 474 Bonsai v. Harker, 2 Harrington (Del.) 327, 436 Bonser v. Cox, 4 Beavan, 379, 103, 350 Bonham v. Galloway, 18 111. 68, 280 Bone V. Torrey, 16 Ark. 83, 181, 527 Bond ». Ray, 5 Humph. (Tenn.) 492, 493 Bond, Thompson v. 1 Camp. 4, 59 Bond, Pipkin v. 5 Ired. E. (Nor. Car.) 91. 296 Bonde, Bartlow v. 3 Dana (Ky.) 591,. 380 Bonser v. Cox, 6 Beavan, 110, 103 Booth V. Storrs, 75 111. 438, 354 Booth, Comegys v. 3 Stew. (Ala.) 14, ' 326 Boothly, Morley v. 3 Bing. 107, 61, 68 Boothly, Morley v. 10 Moore 395, 7, 9, 71 Boom V. Batchelor, 1 Hurl. & Nor. 225, 70 Boorman, Oakley v. 21 Wend, 588, 74, 81 Boody V. United States, 1 Wood- bury & Minot, 150, 469 Sectioh Boomer, Braley v. 116 Mass.' 527, 409 Bordelon v. Weymouth, 14 La. An. 93, 817 Bordon v. Gilbert, 13 Wis. 670, 116 Borden v. Houston, 2 Tex. 594, 29, 470 Borst, Herrick v. 4 HiU (N. T.) 650, 206 Borough of Elizabeth, Steiple v. 2 Dutcher (N. J.) 407, 29 Bordley, Buohannan v. 4 Harr. & McHen. (Md.) 41, 296 Bosson, WilKams v. 11 Ohio, 62 156 Bostick, Hill v. 10 Terg. (Tenn.) 410, 819 Bostick, Kyle u. 10 Ala. 589, ~ 309 Bostoh & Sandwich Glass Co. v. Moore 119 Mass. 435, 130, 135 Boston Hat Manufactory v. Messin- ger 2 Pick. 223, 342 Bostock, The Wardens of St. Sav- iors Southwark, v. 5 Bos. & Pul. 175, 140 Boswell V. Lainhart, 2 La. (Miller) 397, 443 Bostwick, Camp v. 20 Ohio St. 337, 259 Bostwick, Nelson ». 5 Hill 37, 168 Bottrill, Nothingham Hide Co. v. Law Rep. 8 Com. PL 694, Bothwell 1). Sheffield, 8 Ga. 569, 488 Boulter, Bird v. 4 Barn. & Adol. 443, 76 Boughton ». Bank of Orleans, 2 Barb. Ch. R. 458, 244 Boulton, Cameron ». 9 Up. Can. C. P. R. 537, 244 Boulware v. Robinson, 8 Texas, 327, , 181 Boutle V. Martin, 16 La. (Curry) 133, 208 Bowls, Gray v. 1 Dev. & Batt. Law (Nor. Car.) 437, 406 Bourcier, Hill v. 29 La. An. 841, 384 Boultbee v. Stubbs, 18 Vesey, 20, 329 Bouldin, Holland v. 4 T. B. Mon. (Ky.) 147, 437 Bourne v. Todd, 63 Me. 427, 49B Bourn, English v. 7 Bush (Ky.) 138, 508 XXIV TABLE OF CASES. Section Bovard, Simpson's Exrs. v. 74, Pa. St. 351, 333, 357 Bovill V. Turner, 2 Chitty, 205, 137 Bowmaker, v. Moore, 7 Price, 223, 416 Bowmaker, Moore v. 6 Taunt. 379, 416 Bowmaker v. Moore, 3 Price, 214, 416 Bowmaker, Moore ». 2 Marshall, 392, 416 Bowmaker, Moore v. 2 Marshall, 81, ^ 416 Bowes,' Woodworth ». 5 Ind. (3 Port.) 276, 222 Bowser v. Rendell, 31 Ind. 128, 231 Bowdich V. Green, 3 Met. (Mass.) 360, 235 Bowen v. Hoskins, 45 Miss. 183. 239 Bowen, Carpenter v. 42 Miss. 28, 282 Bowser p. Rendell, 31 Ind. 128, 332 Bowne, Thompson v. 39 New Jer. Law (iO Vroom,! 2, 296 Bowland, Loughridge v. 52 Miss. 546, 177 Bowker v. Bull, 1 Simons (N. S.) 29, 21, 275 Bowman , Woodbury v. 14 Me. 154, 190 Bowman, Governor v. 44 III. 499, 324 Bowman, Riddle v. 27 New Hamp. 236, 178 Bowman, State v. 10 Ohio, 445, 127 Bowne, Thompson v. 39 New Jer. Law (10 Vroom.) 2, 208 Bowler, Connecticut Mut. Life Ins. Co. V. 1 Holmes, 263, 845 Bower v. Com. of Wash Co., 25 Pa. St. 69, 476 Box, Lemmon v. 20 Tex. 329, 56 Boydell v. Drummond, 11 Bast, 142, 66 Boynton v. Pierce, 79 111. 145, 147, 153 Boynton v. Phelps, 52 111. 210, 413 Boynton v. Robb, 22 111. 525, 413 Boynton, Beach v. 26 Vt. 725, 503 Boynton, Nelson v. 3 Met. (Mass.) 396, 50, 54 Boynton, Tiirrill ». 23 Vt. 142, 309, 312 Boyd, Martin v. U New Hamp. 885,. . 151 Boyd, Collins v. 14 Ala. 505, 180 Boyd V. Brooks, 34 Beavan, 7 196 Sectioh Boyd, Briggs v. 37 Vt. 534, 95, 225, 247 . Boyd, Steele v. 6 Leigh (Va.) 547, 312 Boyd, Mayhew v. 5 Md. 102, 345 Boyd V. Gault, 3 Bush (Ky.) 644, 492 Boyd V. Caldwell, 4 Richardson Law (So. Car.) 117, 496 Boyd, United States v. 5 Howard (U. S.) 29, 522 Boyd V. Titzer, 6 Cold. (Tenn.) 568, 505 Boyd V. Swing, 88 Miss. 182, 445 Boyd, United States v. 15 Peters, 187, 449 Boyd V. Moyle, 2 Man. Gr. & S. 644, 9 Boyer, Burr v. 2 Nebraska, 265, 389 Boykin w. Dohlonde, 1 Sel. Cas. Ala. 502, 62 Boyle, Corprew v. 24 Gratt. (Va.) 284, 463 Boyle V. Bradley, 26 Up. Can. C. P. R. 373, 143 Boyce, Pride v. Rice Eq. (So. Car.) 275, 118 Boyer, Johnson v. 3 Watts (Pa.) 376, 425 Brady ». Sackrider, 1 Sandf. (N. T.) 514, 62 Branch Bank at Mobile, Winter v. 23 Ala. 762, 392 Branch Bank at Motile, Hooks v. 8 Ala. 850, 392 Branch Bank at Mobile v. James, 9 Ala. 949, 17, 296 Branch Bank at Mobile, Mauldlin V. 2 Ala. 502, 10 Branch Bank at Mobile, Bates v. 8 Ala. 689, 503 Branch Bank at Montgomery v. Perdue, 3 Ala 409, 206 Branch Bank at Mobile, CuUum v. 23 Ala. 797, 282 Branch Bank at Huntsville, Hous- ton V. 25 Ala. 250, 276 Branch v. The Macon and Bruns- wick R. R. Co. 2 Woods, 385. 282 Branch v. Commonwealth, 2 Call (Va.) 510, 451 Branch, Commonwealth v. 1 Bush (Ky.) 59, 432 433 TABLE OF CASES. XXV Section Bradley, Byan v. Taylor Law & Eq. (Nor. Car.) 77, 435 Bradley v. Richardson, 23 Vt. 720, 57 Bradley, Lewis v. 2 Ired. Law (Nor. Car.) 303, 160 Bradley v. Cary, 8 Greenl. (Me.) 234, 160 Bradley, Parker v. 2 HiU, 584, 9, 127 Bradley, Boyle v. 26 Up. Can. C. P. R. 373, 143 Bradley v. BurweU, 3 Denio, 61, 248, 257 Bradley, Derossett v. 63 Nor. Car. 17, 245 Bradley v. Kesee, 6 Cold. (Tenu.) 223, 860 Bradley, Seaver v. 6 Greenl. (Me.) 60, 174 Bradley, MoEnight v. 10 Rich Eq. (So. Car.) 557, 193 Bradford, Scott v. 5 Port. (Ala.) 443, 506 Bradford, Jones v. 25 Ind. 805, 250 Bradford v. Consaulus, 3 Cowen, 128, 431 Bradford, Admr. v. Marvin, 2 Fla. 463, 276 Bradford, Sawyer v. 6 Ala. 572, 382 Bradford, Hawley v. 9 Paige, 200, 22, 148 Brady ». Reynolds, 13 Cal. 81, 341 Brady v. Peiper, 1 Hilton (N. Y.) 61, 352 Brainard v. Reynolds, 86 Vt. 614, 83 Brainard ». Jones, 18 New York, 35, 93 Brant v. Green, 6 Leigh (Va.) 16, 76 Brandt, Sharman v. 40 Law Jour. (N. S.) 312, 76 Bray, Moore v. 10 Pa. St. 519. 269 Bray, Horn v. 51 Ind. 555, 46 Bradner v. Garrett, 19 La. (Curry) 455, 17 Bramwell v. Farner, 1 Taunton, 427, 439 Bramhall, Hoy w. 4 C. E. Green (N. J.) 563, 21 Bradshaw, McDonald v. 2 Kelly (Ga.) 248, 458 Section Bradshaw, State «. 10 Lredell Law (Nor. Car.) 229, 473 Braught v. Griffith, 16 Iowa, 26, 264 Braman v. Howk, 1 Blackf. Ind. 392, 309 Brackett v. Rich, 53 Minn. 485, 83, 169 Bradwell v. Spencer, 16 Ga. 678, 533 Bradbear, Blagden v. 12 Vesey, 466, 76 Bradbury v. Morgan, 1 Hurl. & Colt. 249, 113 Brandenburg v. Flynn's Exr. 12 B. Mon. (E:y.)897, 227 Brandon v. Medley, 1 Jones' Eq. (Nor. Car.) 313, 235 Brawer, Chamberlin v. 3 Bush (Ky.) 561, 358 Bragg V. Shain, 49 Cal. 181, 345 Braley v. Boomer, 116 Mass., 527, 409 Brackenridge, Lewis v. 1 Blackf. (Ind.) 112, 434 Brassfield, Commonwealth v. 7 B. Mon (Ky.) 447, 518 Braton v. Townsee, 12 Iowa, 346, 487 Brazier v. Clark, 5 Pick. 96, 498 Bremridge, Evans «. 8 De Gex. Macn. & Gor. 100, 849 Bremridge, Evans v. 2 Kay & Johns. 174, 349 Breese, First National Bank of Fort Dodge v. 39 Iowa, 640, 92 Breese v. Schuler, 48 111. 329, 203 Breckinridge v. Taylor, 5 Dana (Ky.) 110, 221, 247, 252, 529 Breden, County of Fontenac ». 17 Grant's Ch. R. 645, 450, 474 Breed v. Hillhouse, 7Ct. 523, 8, 164 175 Brengle ». Bushey, 40 Md. 141, 320 Brengle, Creager v. 5 Harris & Johns. (Ind.) 234, 281 Brettel v. Williams, 4 Wels. Hurl. & Gor. 623, ' 10, 66, 73 Breedlove, Bogarth v. 75 111. 561, 333 Brenner, Ray v. 12 Kansas, 105, 892 Brent v. Green, 6 Leigh (Va.) 32, 76 Brennan, Stinson v. Cheves Law (So. Car.) 15, 184 Breslauer, Allen v. 8 Cal. 552, 437 XXVI TABLE OF CASES. Section Bresler v. Pendell, 12 Mich. 224, 62 Brett, Wood v. 9 Grant's Ch. R. 452, 123 Brewer v. Knapp, 1 Pick. 382, 90 Brewer v. Franklin MOls, 42 New Hamp. 292, • 264 Brewer, Ladd v. 17 Kansas, 204, 417 Brewster, Lewis v. 2 McLean, 21, 172, 174 Brewster, Worthan v. 30 Ga. 112, 308 Brewster v. Silence, 8 New York, 207, 70, 74 Brevard v. Wylie, 1 Richardson Law (So. Car'.) 38, 526 Brevard, Mushat v. 4 Dev. (Nor. Car.) 73, 38 Brevard, Lang v. 3 Strob. Eq. (So. (Car.) 59, 389 Breyfogle, People v. 17 Cal. 504, 127 Briant, Claflin v. 58 Ga. 414, 167 Bridgham, Hunt v. 2 Pick. 581, 120, 296 Bridges v. Phillips, 17 Texas, 128, 129 Bridge, Bigelow v. 8 Mass. 275, 140 Briggs V. Boyd, 37 Vt. 584, 95, 225, 247 Briggs V. Law, 4 Johns. Ch. 22, 352 Briggs, "Whipple v. 28 Vt. 65, 179 Briggs, Whipple v. 30 Vt. Ill, 197 Briggs, Baker v. 8 Pick. 122, 48, 151 158, 209, 211, 370 Briggs, Gleason ». 28 Vt. 185, 48 Briggs V. Evans. 1 E. D. Smith, (N. T.) 192, 63 Brick V. Freehold National Bank- ing Co., 8 Vroom, (N. J.) 307, 385 Brick ads. The Freehold National Banking Co., 8 Vroom (N.J.) 307, , 884 Brickhead v. Brown, 5 Hill (N. T.) 634, 345 Brickhead v. Brown, 2 Denio, 375, 845 Brickwood v. Anniss, 5 Taunt. 614, 425 Briokinden, Tolhurst v. Cro. Jao. 250, 8 Brickett, Commonwealth v. 8 Pick. 138, 427 Brink, Sears"». 3 Johns. 210, 68 Section Brinkerhoff, Parks v.. 2 Hill (N. Y.) 663, 15 Brillhart, McConnell v. 17 111. 354, 75, 76 Brinkard, Shaw v. 10 Ind. 227, 310 Brinker, Woolworth «. 11 Ohio St. 593, 314,325 Brinson v. Thomas, 2 Jones Eq. (Nor. Car.) 414, 277 Brinagar's Admr. v. Phillips, 1 B. Mon. (Ky.) 283, 296 Bright V. McKnight, 1 Sneed, (Ten.) 158, 165 Brigham v. Wentworth, 1?. Gush. 123, 346 Brinsley, Prescott v. 6 Cush. 233, 95 Briley v. Sugg, 1 Dev. & Batt. Eq. (Nor. Car.) 866, 272 Brien v. Smith, 9 Watts & Serg. (Pa.) 78, 275 Bristow V. Brown, 13 Irish Com. Law. Rep. 201, 216 Briscoe, Givens v. 8 J. J. Marsh (Ky.) 529, 218, 311 Briscoe, Huddlestone v. 11 Vesey, 583, 66, 75 Brisendine ». Martin, 1 Ired. Law (Nor. Car.) 286, 249 Brisbin, County Co. of Ramsey Co. V. 17 Minn. 451, 445 Britton ». Dierker, 46 Mo. 591, 331 Britton, EUett v. 10 Tex. 208, 68 Broadbent, Liveraidge v. 4 Hurl. & Nor. 603, 52 Brobst V. SkiUen, 16 Ohio, St. 382, 458 Brock, Selser v. 8 Ohio, St. 302, 331, 358 Brock, Parham Sew. Mach. Co. v. 113 Mass, 194, 94, 98 Brock, Kinyon v. 72 Nor. Car. 554, 85 Brodie v. St. Paul, 1 Vesey, Jr. 826, 66 Brooks, Harris v. 21 Pick. 195, 17, 46, 211 Brooks V. Wright 18 Allen, 72, 304 Brooks, Haigh v. 10 Adol. & Ell. 309, 72 Brooks, Fowler v. 13 New Hamp. 240, 300, 307 Brooks, Chace v. 5 Cush. 48, 297 TABLE OF OASES. XX VU Section Brooks V. Carter, 36 Ala. 682, 206 Brooks, Boyd v. 34 Beavan, 7, 196 Brooks, York Co. M. F. Ins. Co. v. 51 Me. 606, 355, 358 Brooks V. Brooke, 12 Gill & Johns. (Md.) 306, 118 Brooks V. Shepherd, 4 Bibb. (Ky.) 572, 421 Brooks V. Governor, 17 Ala. 806, 456 Brooke Wynn». 5Rawle(Pa.)106, 187 Brookins v. Shumway, 18 Wis. 98, 812 Brookshiro, Landrum v. 1 Stewart (Ala.) 252, 181 Brookett v. Martin, 11 Kansas, 878, 481 Brown, State v. 11 Ired. Law (Nor. Car.) 141, 484 Brown, Latham v. 16 Iowa, 118, 481 Brown, Brown v. 17 Ind. 475, 513 Brown v. Brown, 47 Mo. 180, 9 Brown, Gray v. 1 Richardson Law (So. Car.) 351, 493 Brown v. Lattimore, 17 Cal. 93, 460 Brown v. Phipps, 6 Smedes & Mar. (Miss.) 51, 454 Brown, Johnson v. 51 Ga. 498, 97 Brown, Cra,po v. 40 Iowa, 487, 111 Brown, Eisley v. 67 ISTew York, 160, 117 Brown v. Ayer, 24 Ga. 288, 121 Brown v. Curtiss, 2 New York, 225, 63,86 Brown v. Burrows, 2 Blatchford, 340, ' 93 Brown v. Taber, 5 Wend. 566, 95 Brown v. Strait, 19 111. 88, 52 Brown v. Grover, 6 Bush (Ky.) 1, 536 Brown, People ». 2 Douglass (Mich.) 9, 335 Brown, Boalt v. 130hio St. 364, 834 Brown, Brickhead v. 5 ffill{N. Y.) 634, 96, 346 Brown, Brickhead v. 2 Denio, 375, 96, 345 Brown, Blest v. 4 De Gex, Fish & Jones, 867; Id. 3 Giffard, 450, 348 Brown, Canal & Banking Co. ». 4 La. An. 545, 352, 355 , Brown v. Ray, 18 New Hamp. 102, 233 Section Brown v. McDonald, 8 Yerg. (.Tenn.) 158, 244 Brown, Yancey v. 3 Sneed (Tenn.) 89, 167 Brown, Cox v. 6 Jones Law (Nor. Car.) 100, 168 Brown, Dunbar v. 4 McLean, 166, 168 Brown, Ten Eyck v. 3 Pinnoy (Wis.) 452, 35, 116, 170 Brown, Wolfe v. 5 Ohio St. 304, 173 Brown v. Kidd, 34 Miss. 291, 194 Brown, Foote v. 2 McLean, 896, 168 Brown, Beal v. 13 Allen,. 114, 196 Brown v. Wright, 7 T. B. Monroe (Ky.) 396, 201 Brown, Haden v. 18 Ala. 641, 206 Brown, Halstead v. 17 Ind. 202, 208 Brown, Bristow v. 13 Irish Com. Law Rep. 201, 216 Brown v. Exrs. of Riggins, 3 Kelly, (Ga.) 405, 27, 378, 382 Brown v: Gibbons, 37 Iowa, 654, 372 Brown, Halstead v. 17 Ind. 202, 808 Brown v. Roberts, 14 La. An. 256, 812 Brown, Jones v. 11 Ohio St. 601, 315 Brown, Christner v. 16 Iowa, 130, 21, 805 Brown, Gray's Exrs. v. 22 Ala. 262, 202, 299 Brown, Exrs. of Riggins v. 12 Ga. 271, 299 Brown, Merrimack County Bank V. 12 New Hamp. 320, 286, 299, 300 Brown v. Haggerty, 26 111. 469, 17, 293 Brown, Haden v. 18 Ala. 641, 296 Brown, Wilson v. 2 Beasley (N. J.) 277, 260 Brown, Gossin v. 11 Pa. St. 527, 275 Brown, Boatt v. 13 Ohio St. 864, 331 Brown v. Lang, 4 Ala. 50, 278 Browp, Birckhead v. 5 HiU, 634, 67 Brown, Hurley v. 98 Mass. 545, 67 Brown, Church v. 21 New York, 315, 70 Brown, Church v. 29 Barb. (N. Y.) 486, 71 Brown, Hunt v. 5 Hill, 145, 74 Brown, ElHs v. 6 Barb. (N. Y.) 282, . 150 Brown, Lonsdale v. 4 Wash. 148, 8 XXVIU TABLE OF OASES. Section Brown, Kinloch v. 1 Rich. (So. Car.) 223, 64 Brown, Kinlocli e. 2 Spear's Law, (So. Car.) 284, 61 Brown, Leroux v. 12 Com. B. 801, 38 Brown v. Adams, 1 Stew. (Ala.) 61, 47 Brown, Curtis v. 5 Cush. (Mass.) 488, 48 Brown, State v. 16 Iowa, 314, 433, 435 Brown, Seeley ». 14 Pick. 177, 435 Brown, Banks v. 4 Terger (Tenn.) 198, 396 Brown v. Dillahunty, 4 Smedes & Mar. (Miss.) 713, 429 Brown, Pike v. 7 Cush. 133, 39, 58 Brown v. Ayer, 24 Ga. 288, 27 Brown, Curtis v. 5 Cush.. 488, 50 Browne v. Carr, 2 Russell, 600, 126 Browne v. Carr, 7 Bing. 508, 373 Browne v. Carr, 5 Moore & Paynes, 497, ■ 374 Browder, Thomas v. 33 Texas, 783, 483 Brower, Salem Manf. Co. ■». 4 Jones Law (Nor. Car.) 429, 178 Brownell, Atlas Bank v. 9 Rhode Is. 168, 866, 868, 519 Browning v. Fountain, 1 Duvall, (Ky.) 13, 94 Brownelow v. Torbes, 2 Johns. 101, 426 . Broyles v. Blair, 7 Terg. (Tenn.) 279, 418 Broome v. United States, 15 How- ard (U. S.) 148, 450 Broom, Oldham v. 28 Ohio St. 41, 280 Bronaugh v. Neal, 1 Robinson (La. ) 23, 203 Broughton v. Robinson, 11 Ala. 922, 259 Broussard, Moore v. 20 Martin, (La.)8N. S. 277, 296 Brubaker v. Okeson, 36 Pa. St. 519, 212 Bruce v. United States, 17 How. (U. S.) 487, 80, 467 Bruce, Napier v. 8 Clark & Pin- neUy, 470, 138 Section Bruce v. Edwards, 1 Stew. (Ala.) 11, 17, 206 Brue'n, Bell v. 1 How. (U. S.) 169, 78 Brugniere, Dussol v. 50 Cal. 456, 255 Brummitt, Ballard v. 4 Strobh. Eq. (So. Car.) 171, 493 Brunton v. DuUens, 1 Poster & Pin. 450, 62 Brune, Enders v. 4 Randolph (Va.) 438, 260 Brunei, Gallagher v. 6 Cowan, 346, 69, 60 Brush V. Carpenter, 6 Ind. 78, 47 Brush V. Raney, 34 Ind. 416, 352 Brutton, Lake v. 8 De Gex, Macn. & Gor. 440, 267 Bry, McGuire v. 3 Robinson (La.) 196, 314, 447, 473 Bryant, Babcock v. 12 Pick. 133, 163 Bryant, Guardian v. Owen, 1 Kelly (Ga.) 355, 633 Bryant, Hamilton v. 114 Mass. 627, 409 Bryant, Hancock v. 2 Yerg. (Tenn.) 476, 206, 207 Bryant, Laythoarp v. 2 Bing. (N. C.) 755, 76 Bryant v. Owen, 1 Kelly (Ga.) 355, 467 Bryant, Whitman v. 49 Vt. 512, 61 Bryant v. Berry, 6 Cal. 894, 10, 148 Bryant v. Hunt, 4 Sneed, 543, 67 Bryon, People v. 3 Johns. Cas. 53. 490 Bryan v. Bradley, Taylor Law & Eq. (Nor. Car.) 77, 435 Bryan, Heart v. 2 Deyereux Eq. (Nor. Car.) 147, 260 Buchanan, Moale v. 11 Gill & Johns. (Md.) 814, 66 Buchanan v. Clark, 10 Gratt. (Va.) 164, 262 Buchanan v. Bordley, 4 Harr. & McHen. (Md.) 41, 296 Buchanan, Bennett v. 3 Ind. 47, 181 Bucknell, Maule v. 60 Pa. St. 39, 56 Buchtel, Rows v. 13 Ind. 881, 606 Buckner v. Archer, 1 McMullan, Law (So. Car.) 86, 632 Buckner v. Clark's Exr. 6 Bush 168. 6 TABLE OF CASES. XXIX Section Buckner's Admr. v. Stewart, 34 Ala. 529, 254 Buckner v. Morris, 2 J. J. Marsh, (Ky.) 121, 273 Buckmyr v. Damall, 6 Mod. 248, Id. 2 Ld. Raym. 1085; Id. 1 Salk 27, 40. 42 Buckley v. Beardslee, 2 South. 572, 68 Bucklin, Barber v. 2 Denio 45, 52, 55, 58 Bucklenc. HufF, 53 Ind. 474, 298 Buck v. Sanders, 1 Dana(Ky.) 187, 204 Buckmaster v. Harrop, 7 Vesey, , 341, 76 Buckalew v. Smith, 44 AJa. 638, 206 Buckman, Goodman v. 11 Iowa, 308, 84 Buckhannon, Thompson v. 2 J. J. Marsh. (Ky.) 416, 5,12 Budd, Shinn v. 1 McCarter (N. J.) 234, 260 Buel, Barker v. 5 Gushing, 519, 213 Buel V. Gordon, 6 Johns. 126, 189 Buford V. Francisco, 3 Dana (Ky.) 68, 195 Bugg, State v. C. Robinson (La.) 63, 121 Buie V. Wooten, 7 Jones Law (Nor. Car.) 441, 424 Bull V. Bliss, 30 Vt. 127, 84, 168 Bull, Hill V. 1 Gilmer (Va.) 149, 296 Bull, Bowker v. 1 Simons (N. S.) 29, 21, 275 Bull V. Allen, 19 Conn. 101, 17 Bull's Head Bank, McMillan v. 32 Ind. 11, 1, 166 Bullock V. Campbell, 9 Gill (Md.) 182, 177 Bullock V. Lloyd, 2 Car. and P. 119, 46 Bullock, Jones v. 3 Bibb (Ky.) 467, 378 Bullock, Grubb v. 44 Ga. 379, 436 Bullock V. Campbell, 9 Gill (Md.) 182, 199 BuUer, Mortlock v. 10 Vesey, 292, 76 BuUard v. Ledbetter, 5 The Re- porter (Sup. Ct. Ga.) 231, 211 BuUard v. Gilette, 1 Montana, 509, 899 Section Bullitt's Exrs. v. Winstons, 1 Munf. (Va.) 269, 326 Bulkeley v. Lord, 2 Starkie, 406, 107 Bumcratz, Powers ». 12 Ohio St. 273, 167 Bunting, Draughn v. 9 Ired. Law (Nor. Car.) 10, 47, 245 Bunting v. Ricks, 2 Dev. & Bat. Eq. (Nor. Car.) 130, 204 Bunker v. Tufts, 55 Me. 180, 179 Bunbury, Weiner v. 30 Mich. 201, 514 Bundy, Blazon v. 15 Ohio St. 57, 27, 307 Bunco V. Bunco, Kirby (Ct.) 137, 178 Burton. Weeks v. 7 Vt. 67 59 Burton, Hunt v. 18 Ark. 188, 415 Burton v. Hansford, 10 West Va. 470, 152, 153 Burton, Mitchell v. 2 Head (Tenn.) 613, 383 Burton v. Rutherford, Admr. 49 Mo. 255, 199 Burton, Mitchell v. 2 Head (Tenn.) . 613, 835 Burton, Ross v. 4 Up. Can. Q. B. R. 357, 131 Bums, Bank of Albion v. 46 New York, 170, 22, 296 Bums V. Huntingdon Bank, 1 Pen. & Watts (Pa.) 395, 270 Burns v. Parish, 3 B. Mon. (Ky.) 8, 101, 186 Bums V Parkes, 53 Ga. 61, 200 Burns, Cave v. 6 Ala. 780, 246 Bums, Ketchell v. 24 Wend. 456, 33 Burr V. Boyer, 2 Nebraska, 265, 389 Burrus, Thomas v. 23 Miss. 550, 82 Bumham, State v. 44 Me. 278, 431 Burch, Cordlew. lOGratt. (Va.)480, 29 Burch ?'. Watts, 37 Texas, 135, 410 Burk V. Chrisman, 3 B. Mon. (Ky.) 50, 276 Burke v. Cruger, 8 Te.x. 66, 18 Burke, Turton v. 4 Wis. 119, 68 Burke v. Crager, 8 Texas, 66, 320 Burke, Whiting v. Law Rep. 10 Eq. Cas. 539, 222 Burke, Whiting v. Law Rep. 6 Ch. Appl. Cas. 842, 222 XXX TABLE OF CASES. Section Burke v. Glover, 21 Up. Can. Q. B. R. 294, 416 Burlingame, Hartman v. 9 Cal. 557, 17, 208 Burlingame, Talmage v. 9 Pa. St. 21, 311 Burliiiganie, Crist v. 62 Barb. (N. Y.) 351, 78, 133 Burghart, Lane v. 1 Adol. & Ell. (N. S.) 933, 48 Bums V. Semmes, 4 Cranch Cir. Ct. 702, 157 Burrows v. McWhann, 1 Desaus- sure Eq. (So. Car.) 409, 269 Burrows, Barber v. 51 CaL 404, 323 Burrows, Brown v. 2 Blatchford, 340, 93 Burroughs v. United States, 2 Paine, 569, 282 Burroughs v. Lott, 19 Cal. 125, 252 Burnet v. Courts, 5 Harr. & Johns. (Md.) 78, 292 Burnett v. Henderson, 21 Texas, 588, ' 445 Burgess, Taylor v. 5 Hurl. & Nor. 1, 236 Burgess v. t)ewey, 83 Vt. 618, 310 Burkholder, Stickler v. 47 Pa. St. 476, 207 Burdett, Clark v. 2 Hall (N. T.) 217, 167 Burwell, Bradley v. 8 Denio, 61, 248, 257 Burks V. WonterUne, 6 Bush (Ky.) 20, 363 Bumham v. Choat, 5 Up. Can. K. B. R. (0. S.) 736, 255 Bumham v. Gallentine, 11 Ind. 295, 86 Burt *. Horner, 5 Barb. (N. T.) 501, 82, 85 Burt V. McFadden, 58 111. 479, 347 Burgess v. Eve, Law Rep. 13 Eq. 450, 134 Burson v. Eincaid, 3 Pen. & Watts (Pa.) 57, 129 Burohard, Ferry v. 21 Ct. 597, 121 Burfoot, Wilson v. 2 Gratt. (Va.) 134, 447 Section Burrell, Ex parte In re Robinson, Law Rep. 1 Chancery Div. 537, 218 Burford, Goode v. 14 La. An. 102, 497 Burnell, Groynne v. 7 Clark & Pin- nelly, 572, 468 Bushee v. Allen, 31 Vt. 631, 62 Bushnell v. Beavan, 1 Bing. N. C. 103, 60 Bush, Donley v. 4A Texas, 1, 15& Bush, Dempseyj). 18 Ohio St. 376, 270 Bush V. Stamps, 26 Miss. 463, 284 Bush, Clark v. 3 Cowen 151, 93 Bush V. Critchfield, 5 Ohio, 109, 112 Butler V. Birkey, 13 Ohio St. 514, 231 Butler V. Butler's Admr., 8 West Va. 674, 182 Butler V. Bissel, 1 Root (Ct.) 102, 436 Butler, Capel v. 2 Simons & Stu- art, 457, 389 Butler, Grimes v. 1 Bibb (Ky.) 192, 443 Butler, Guild v. 5 Tlie Reporter, 15, 374 Butler V. Hamilton, 2 Desaussure Eq. (So. Car.) 226, 296 Butler, Knotts v. 10 Richardson Eq. (So. Car.) 143, 113, 259 Butler V. Rawson, 1 Denio, 105, 116 Butler V. Sugarloaf, 6 Pa. St. 262, 111 Butler V. State, 20 Ind. 169, 458 Bushnell v. Beavan, 4 Moore & Scott, 622, 60 Bushnell v. Church, 15 Ct. 406, 164, 166, 520 Bushell V. Beavan, 1 Bing. N. C. 103, 50, 71 Butcher v. Stewart, 11 Mees. & Wels. 857, 48, 72 Buss, Pledge v. Johnson (Eng. Ch.) 663, 348, 370 Buahey, Brengle v. 40 Md. 141, 320 Bussier v. Chew, 5 Phil. (Pa.) 70, 97, 135 Bussell, Page v. 2 Maule & Sel. 551, 189 Buster, People v. 11 Cal. 215, 461 Buttles, Starling v. 2 Ohio, 303, 506 Byers v. McClanaghan, 6 Gill, & Johns. (Md.) 250, 461, 229, 256 Byrne v. .ffltna Ins. Co. 56 111. 321, 82 TABLE OF CASES. XXXI Section C. & A. R. R. Co. V. Higgins, 68 111. 128, 102 Caballero v. Slater, 14 Com. B. (5 J. Scott) 300, 70 Cabot Bank v. Morton, 4 Gray, 156, 16 Cabot,, Hayden v. 17 Mass. 183 Cady V. Shelden, 38 Barb. (N. T ) 103, 82, 83 Cage V. Poster, 5 Terg. (Tenn.) 261, 257 Cahill V. Bigelow, 18 Pick. 369, 61, 62 Cahn, Heintz v. 29 111. 308, 147 Cain V. Bates, Admr. 35 Mo. 427, 392 Cake V. Lewis, 8 Pa. St. 493, 189 Calkins, Fuller v. 22 Iowa, 301, 452, 478 Cailleux v. Hall, 1 E. D. Smith (N. T.) 5, 52 Calef, McDougal v. 34 New Hamp. 534, 110 Caldwell, Boyd v. 4 Richardson Law (So. Car.) 117, 496 Caldwell's Exr. v. McVicker, 9 Ark. (4 Eng.) 418, 296 Caldwell v. Gans, 1 Montana, 570, ■ 419 Caldwell V. Heitsbu, 9 "Watts & Serg. (Pa.) 51, 7, 361 Caldwell, Kenner v. Bailey Eq. Cas. (So. Car.) 149, 209 Caldwell v. Roberts, 1 Dana (Ky.) 855, 254 Caldwell v. Sigoumey, 19 Ct. 37, 120 Calhoun, Ewins v. 7 Vt. 79, 59 Calhoun, Wheatley's Heirs v. 12 Leigh (Va.) 264, 262 Callahan v. Saleski, 29 Ark. 216, 398 Calliham ». Tanner, 3 Robinson, (La.) 299, 296, 325 Callaway County Court, STolley v. 11 Mo. 447, 451, 522, 535 Callaway County Courts Craig v. 12 Mo. 94, 120 Calvert, Gordon v. 2 Simons, 253, 113 Calvert, Gordon ». 4 Russell, 581, 113 Calvert v. Gordon, 3 Man. & Ryl. 124, 113 Calvert Hill v. 1 Rich. Eq. (So. Car.) 56, 335 Section Calvert v. London Dock Co. 2 Keen, 638, 345 Calvert, Warre v. 7 Adol. & Ell. 143, 102 Calvert, Warre v. 2 Nev. & Per. 126, 102 Calvin v. Wiggam, 27 Ind. 489, 309 Calvo V. Davies, 8 Hun (N. T.) 222, 24 Cameron v. Boulton, 9 Up. Can. C. P. R. 537, 244 Cameron v. Clark, 11 Ala. 259, 49 Cameron v. Justices, 1 Kelly (Ga.) 36, 494 Cameron, Kerr ». 19 Up. Can. Q. B. R. 366, 300 Camden v. McKoy, 3 Scam. (lU.) 437, 147 Campbell v. Baker, 46 Pa. St. 243, 86, 297 Campbell, Boehm v. 3 Moore, 15, 70 Campbell, Boehm v. 8 Taunt. 679, 70 Campbell, Bullock v. 9 Gill (Md.) 182, 177, 199 Campbell, Chaffin v. 4 Sneed, (Tenn.) 184, 227 Campbell v. Findley, 3 Humph. 330, 68 CampbeU v. Gates, 17 Ind. 126, 352 Campbell, Keaton's Distributees ». 2 Humph. (Tenn.) 224, 502 CampbeU, Kee v. 27 Mich. 497, 229 Campbell ». Lacock, 40 Pa. St. 448, 34 Campbell v. Macomb, 4 Johns. Ch. R. 534, 192 Campbell, MoKee v. 27 Mich. 497, 187 Campbell, Moore v. 36 Vt. 361, 264 Campbell v. Moulton, 30 Vt. 667, 94 Campbell, Newman v. Martin & Yerg. (Tenn.) 63, 515 Campbell, Stevens v. 6 Iowa (Clarke) 538, 504 CampbeU v. Tate, 7 Lansing, (N. T.) 370, 17 Campbell, Underwood v. 14 New Hamp. 393, 68 CampbeU, Waller v. 25 Ala. 544, 246 Campbell, Warner v. 26 lU. 282, ,305 Campbell, Wilson v. 1 Scam. (lU.) . 493, 82 xxxu TABLE OF CASES. Section Camp V. Bostwick, 20 Ohio St. 337, 259 Camp V. Howell, 37 Ga. 312 309 Cammack, Norton v. 10 La. An. 10, 405 Cammeyer, Rucker v. 1 Esp. 105, 76 Campau v. Seeley, 30 Mich. 57, 425 Canby v. Griffin, 3 Harrington (Del.) 333, 431 Canal and Banking Co. v. Brown, 4 La. An. 545, 355, 522 Canan, Commissioners v. 2 Watts (Pa.) 107, 340 Candee, Castle v. 16 Conn. 223, 148 Cannell v. Crawford Co. 59 Pa. St. 196, 457 Cannon, Gary v, 3 Ired. Eq. (Nor. Car.) 64, 204 Cannon, Gibbs v. 9 Serg. & Rawle (Pa.) 198, 173, 174 Capel V. Butler, 2 Simons & Stuart,, 457, 389 Capen, Gridley v. 72 111. 11, 92 Capen, Melendy v. 120 Mass. 222, 132 Caperton v. Gray. 4 Yerg. (Tenn.) 563, 61 Cardell v. McNeil, 21 New York," 336, 53 Card, Carr o. 34, Mo. 513, 82 Carey v. State, 34 Ind. 105, 453 Carhartt, Barman v. 10 Mich. 838, 83 Carkiu v. Savory, 14 Gray, 528, 102, 312 Carlisle, Harris v. 12 Ohio, 169, 239 Carlisle v. Wilkins' Admr. 51 Ala. 371, 283 Carlile, Ordinary v. 1 McMullen, Law (So. Car.) 100, 532 Carlton, "White v. 52 Ind. 371, 236, 249 Carleton, State v. 1 Gill. (Md.) 249, 324 Carleton, Savage Admr. v. 33 Ala. 443, 504 Carlos V. Ansley, 8 Ala. 900, 195 Carman v. EUedge, 40 Iowa, 409. 164 Carman v. Noble, 9 Pa. St. 366, 190 213, Carnegie v. Morrison, 2 Met. (Mass.) 381, 67 Carney v. Walden, 16 B. Mon. (Ky.) 388, 111 Section Carrington v. Anderson, 5 Munf. (Va.) 32, 76 Carpenter v. Bowen, 42 Miss. 28, 282 Carpenter, Brush v. 6 Ind. 78, 47 Carpenter v. Devon, 6 Ala. 718, 27 Cai-penter v. Doody, 1 Hilton (N. Y.) 465, ■ 485, 487 Carpenter, First National Bank of Dubuque v. 41 Iowa, 518, 174 Carpenter, Hubbell v. 5 New York, 171, 123 Carpenter v. Kelly, 9 Ohio, 106, 235, 257 Carpenter, Kennedy v. 2 Wharton (Pa.) 344, 117, 245 Carpenter v. King, 9 Met. 511, 17, 27, 211 Carpenter, People v. 7 Cal. 402, 489 Carpenter v. Turrell, 100 Mass. 450, 409 Carpenter, Van Waxt v. 21 Up. , Can. Q. B. R. 320 96, 97 Carpenter v. Wall, 4 Dev. & Batt. (Nor. Car.) 144, 53 Carr, Browne v. 5 Moore & Payne, 497, 374 Carr, Browne v. 7 Bing. 508, 374 Carr, Browne v. 2 Russell, 600, 126 Carr ». Card, 34 Mo. 518, 82 Carr v. Howard, 8 Blackf. (Ind.) 190, 208, 327 Carr, Veazie v. 3 Allen, 14, 312 Carrington v. Carson, Conference Reports (Nor. Car.) 216, 253 Carroll, Corbitt v. 50 Ala. 315, 445 Carroll, Holliman v. 27 Texas, 23, 484 Carroll v. Nixon, 4 Watts & Serg. (Pa.) 517, 213 Carroll; Waters v. 9 Yerger (Tenn.) 102, 4-53 Carroll v. Weld, 13 111. 682, 147, 153 Carson, Carrington v. Conference Repoi-ts (Nor. Car.) 216, 253 Carson, Globe Mutual Ins. Co. v. 31 Mo. 218, 319 Carson v. Hill, 1 McMullan Law (So. Car.) 76, 356 Carter v. Black, 4 Dev. & Bat. Law (Nor. Car.) 425, 180 TABLE OF CASES. XXXlll Section Carter, Brooks v. 86 Ala. 682, 206 Carter's Exrs. Catlett v. 2 Munf. (Va.) 24. 494 Carter, Halliburton v. 55 Mo. 435, 189 Carter, O'Neill v. 9 Up. Can. Q. B. R. 470, 347 Carter, Schultz v. Speers Eq. (So. Car.) 533, 273 Carter, Spencer v. 4 Jones Law, (Nor. Car.) 287, 175 Carter, Rice t). 11 Ired. (Nor. Car.) 298, 52 Carter,' Woodbum v. 50 Ind. 876, 805 Cartaphan, Purvis v. 73 Nor. Car. 575, 22 Carstairs v. Rolleston, 1 Marshall, 207, 124 Carutliers v. Dean, 11 Smedes & Mar. (Miss.) 178, 882 Carville v. Crane, 5 Hill, 483, 45, 60 Cary, Bradley v. 8 Greenl. (Me.) 234, 160 Case V. Howard, 41 Iowa, 479, 165, 818 Case V. Luse, 28 Iowa, 627, 87 Case, White v. 13 Wend. 543, 83, 85 Cashiil V. Perth, 7 Grant's Ch. & Appl. Rep. 340, 367 Castle V. Beardsley, 10 Hun, 343, 68 Castle V. Candee, 16 Conn. 223, 148 Caston V. Dunlap, Richardson Eq. Cas. (So. Car.) 77, 208 Casoni v. Jerome, 58 New York, 315, 353, 496 Cassilly, Clements v. 4 La. An. 380, 349 Castling v. Aubert, 2 East, 325, 40, 51, 56 Caskey, Dixon v. 18 Ala. 97, 458 Casky v. Haviland, 13 Ala. 314, 521 Cassitys v. Robinson, 8 B. Mon. (Ky.) 279, 518 Cater, Redhead v. 1 Starkie, 12, 48 Gates V. Kittrell, 7 Heiskell (Tenn.) 606, 84 Gates, Simmons v. 56 Ga. 609, 286 Cathcart v. Gibson, 1 Richardson Law (So. Car.) 10, 225 Cathcart v. Robinson, 5 Peters, 264, 352 Catlett V. Carter's Exrs. 2 Munf. (Va.)24, 494 Section Caflin, Perkins r. 11 Ct. 213, 148, 153 Caton V. Shaw, 2 Harris & Gill (Md.) 13, 165 Catton V. Simpson, 8 Adol. & Ell. 136, 198 Caulfield, Delacour v. 1 Irish Com. Law. Rep. 669, 459 Cave V. Burns, 6 Ala. 780, 246 Cave, Patterson v. 61 Mo, 439, 128 Cecil, Dills v. 4 Bush, (Ky.) 579, 382 CecH V. Early, 10 Gratt.' (Va.) 198, 29,444 Cenas, Perkins v. 15 La. An. GO, 457 Central Savings Bank v. Shine, 48 Mo. 456, 160 Chadney, Cuxon u. 2 Barn. & Cres. 591, 52 Chaffee v. Jones, 19 Pick. 260, 151, 223, 252, 257 Chaffee v. Memphis, C. & M. W. R. R. Co. 64 Mo. 193, 151 ChafRn v. Campbell, 4 Sneed, (Tenn.) 184, 227 Chairman of Schools v. Daniel, 6 Jones Law (Nor. Car.) 444, 146 Chalker. Watrous p. 1 Conn. 224, 38 Chalaron v. McFarlane, 5 La. (Cur- ry) 227, 356 Chalmers, People v. 60 New York, 154, 79, 108 Chambers v. Cochran, 18 Iowa, 1.59, 27, 216 Chambers, Haddens v. 2 Dallas, (Pa.) 236, 189 Chambers, Kerns v. 3 Ired. Eq. (Nor. Car.) 576, 238 Chambers, McDowell v. 1 Strobh. Eq. (So. Car.) 347, 66 Chambers v. Robbins, 28 Conn. 544, 54 Chambers v. Waters, 7 Cal. 390, 420 Chambliss, Hunt v. 7 Smedes & Mar. (Miss.) 532, 223, 226 Chamberlain v. Godfrey, 36 Vt. 380, 524 Chamberlain v. Hopps, 8 Vt. 94, 14 Chamberlain, Lucas v. 8 B. Mon. (Ky.) 276, 46 Chamberlin v. Bra war, 3 Bush (Ky.) 561, 358 XXXIV TABLE OF OASES. Section Chamberlin, Hammond v. 26 Vt. 406, 84 Champion v. Griffith, 13 Ohio, 228, 147 148 Champion v. Plummer, 1 Bos. & Pul. (N. R.) 252, 67 Champlain, Sluby v. 4 Johns. 461, 197 Champomier v. Washington, 2 La. An. 1013, 404 Chandler v. Westfall, 80 Texas, 475, 147, 153 Charidley, Cuxon v. 3 Bam. & Ores. 591, 52 Chappee v. Thomas, 5 Mich. 53, 514 Chaplin, Roche v. 1 Bailey, (So. Car.) 419, 44 Chapin v. Lapham, 20 Pick. 467, 41, 44 Chapin v. Merrill, 4 Wend. 657, 46 Chapman v. Bluck, 5 Scott, 615, 66 Chapman, Chilton v. 13 Mo. 470, 236 Chapman v. Commonwealth, 25 Gratt. (Va.) 791, 294 'Chapman, Johnston v. 3 Pen. & Watts (Pa.) 18, 84, 85 ■ 'Chapman v. McGrew, 20 III. 101, 336 Chapman, Peabody v. 20 New Hamp. 418, 179 'Chapman w. Ross, 12 Leigh (Va.) 565, , 46 'Chapman v. Sutton, 2 Com. B. 634, 9 ■Chapman ». Todd, 60 Me. 282, 383 'Charles, Poster v. 6 Bing. 396, 59 •Charles v. Haskins, 11 Iowa, 329, 484,488 «Chace v. Brooks, 5 Cush. 43, 297 •Chace, Hawkins v. 19 Pick. 502, 75, 76 Chase v. Berand, 29 Cal. 138, 400 •Chase v. Day, 17 Johns. 114, 62, 63 ■Chase, Goodman v. 1 Bam. & Aid. 297, 48, 68 "Chase v. Hathom, 61 Me. 505, 95, 127 ■Chase, Hereford e. 1 Robinson (La.) 212, 371 •Chase v. Lowell, 7 Gray, 33, 66 ■Chase v. McDonald, 7 Harris &~ Johns. (Md.) 160, 79 Chasten, West v. 12 Pla. 315, 23, 192 'Chatcr v. Beckett, 7 Term R. 201, 38,50 Seotiok Chatterton, Nickerson v. 7 Cal. 568, 42(> Cheek v. Glass, 3 Ind. 286, 305 Cheek, Shortrede ». 1 Add. & Ell. 57, 70, 72 Chelmsford Co. v. Demarest, 7 Gray, 1, 140, 518 Cheeney v. Cook, 7 Wis. 413, 70 Cheney, Williams i: 3 Gray, 215, 191 Cherry v. Heming, 4 Wels. Hurl. & Gor. 631, 75 Cherry v. Monro, 2 Baib. Ch. R. 618, 24 Chesney, Bacon v. 1 Starkie, 192 361 Cheshire, Leary v. 3 Jones Eq. (Nor. Car.) 170, 233 Cheeseborough, Aiken v. 1 Hill Law (So. Car.) 172, 53 Cheeseman, United States e. 3 Saw- yer, 424, 142 Chester v. Bank of Kingston, 16 New York, 336, 293, 372 Chethenham Pire Brick Co. v. Cook, 44 Mo. 29, 518 Chew, Bussier v. 5 PhU. (Pa.) 70, 97, 135 Chickering, Dedham Bank v. 3 Pick. 335, 145 Chickering, Dedham Bank v. 4 Pick. 314, 479 Chichester v. Mason, 7 Leigh (Va.) 244, 388 Chicago & N. W. R. R. Co. Smith V. 18 Wis. 17, 106 Chick, Anderson v. Bailey Eq. (So. Car.) 118, 76 Chickasaw County ». Pitcher, 36 Iowa, 593, 316 Child, Glidden v. 122 Mass. 433, 62 Child V. Powder Works, 44 New Hamp. 354, 191 Childs V. Barnum, 11 Barb. (N. T.) 14, 70 Childs, Jones v. 8 Nevada, 121, 190 Childs, Rankin v. 9 Mo. 665, 157, 159, 175 Childress, Ferguson v. 9 Humph. (Tenn.) 382, 325 Childress, Macey v. 2 Tenn. Ch. R. ^(Cooper,) 438, 47, 77 TABLE OF OASES. XXXV Section Childress, Miller v. 2 Humph. (Tenn.) 320, 511 Childress, Buddell v. 31 Ark. 511, 504 Chilton V. Bobbins, 4 Ala. 223, • 302 Chipman v. Fambro, 16 Ark. 291, 527 Chisholm, Lowndes v. 2 McCord Eq. (So. Car.) 455, 263 Chisholm, People v. 8 Cal. 29, 378 Chisholm, Pittman v. 43 Ga. 442, 84 Chittenden, Nurre v. 56 Ind, 462, 225 Cheat, Burnham, v. 5 Up. Can. K. B. B. (0. S.) 736, 255 Choate v. Arrington, 116 Mass. 552, 449 Choppin V. Gobbold, 13 La. An. 238,48 Chorlton, Newton ». 2 Drewry, 333, 370 Choteau v. Jones, 11 111. 300, 177 Chateau v. Thompson, 3 Ohio St. 424, 188 Chretien, Andrus v. 7 La. 0. S. (4 Curry) 318, 36 Chubb, Aldrich v. 35 Mich. 350, 84, 85 Chrisman, Burk ». 3 B. Mon. (Ky.) 50, 276 Chrisman, Mathews v. 12 Smedes & Mar. (Miss.) 595, 164, 165 Christmas, Thomhill v. 10 Eobin- son (La.) 543, ' 434 Christner v. Brown, 16 Iowa, 130, 21, 305 Christie v. Simpson, 1 Rich. Law (So. Car.) 407, 76 Christie, Valentine v. 1 Bobinson (La.) 298, 15 Christy's Admr. ». Home, 24 Mo. 242, , 504 Christopher, Haydon v. 1 J. J. Marsh. (Ky.) 382, 52 Chilton V. Chapman, 13 Mo. 470, 236 Church V. Brown, 29 Barb. (N. Y.) 486, 71 Church V. Brown, 21 New York. 315, 70, 166 Church, Bushnell v. 15 Ct. 406, 164, 520 Churchill, Ide v. 14 Ohio St. 372, 244, 296 Chum, "Ward v. ISGratt. (Ta.) 801, 357 Chute V. Pattee 37 Me. 102, 307 City of Paducah v. Cully, 9 Bush (Ky.) 323, 29 1 Section City of Chicago, Foss v. 34 Bl. 488, 370 City of Keokuk v. Love, 31 Iowa, 119, 261, 266, 278 City Atchison, Manly v. 9 Kansas, 358, ■ 476 City National Bank of Ottawa v. Dudgeon, 65 lU. 11, 275 City of Lowell v. Parker, 10 Met. (Mass.) 309, 484, 530 City Council v. Paterson, 2 BaUey Law (So. Car.) 165, 474 City of St. Louis v. Sickles, 52 Mo. 122, 483 City of IndianapoKs v. Skeen, 17 Ind. 628, 104 City Bank, Stetson v. 2 Ohio St. 167, 521- City Bank of N. 0. Stetson v. 12 Ohio St. 577, 82 City of Maquoketa v. Willey, 35 Iowa, 323, 381 City Bank v. Young, 43 New Hamp. 457, 386 Clafliu V. Briant, 58 Ga. 414, 167 Claflin V. Cogau, 48 New Hamp. 411, 126 Claflin V. Ostrom, 54 New York, 581, 34 Claggett, Rockingham Bank v. 20 New Hamp. 292, 273 Clagett, Salmon v. 3 Bland's Ch. R. (Md.) 125, 329 Clagett V. Salmon, 5 GiU. & Johns. (Md.) 314, 329, 337 Claiborne v. Birge, 42 Texas, 98, 314 Clancy v. Piggott, 4 Nev. & Mann. 496, 63, 68 Clap, Harris v. 1 Mass. 308, 93 Clapp V. Rice, 15 Gray, 557, 241, 255 Clapp V. Rice, 13 Gray, 403, 151, 226 Clapp V. Seibrecht, 11 La. An. 528, 405 Clapp, Shippen's Admr. v. 36 Pa. St. 89, 384 Clark, Bagley v. 7 Bosw. (N. Y.) 94, 341 Clark, Barney e. 46 New Hamp. 514, 212, 881 Clark V. Barrett, 19 Mo. 39, 503 Clark V. Bell, 8 Humph. (Tenn.) 26, 194 XXXVl TABLE OF CASES. Section Clark, Brazier v. 5 Pick. 96, 498 Clark, Buchanan v. 10 Gratt. (Va.) 164, 262 Clark V. Burdett, 2 Hall (N. Y.) 217, 167 Clark V. Bush, 3 Cowen, 151, 93 Clark, Cameron v. 11 Ala. 259, 49 Clark, Famsworth v. 44 Barb. 601, 9 Clark, Geiger v. 13 Cal. 579, 157 Clark V. Gordon, 121 Mass. 330, 90 Clark, Howard v. 36 Iowa, 114, 311 Clark, Hunter v. 28 Texas, 159, 382 Clark, Keer v. 4 Humph. (Tenn.) 77, 240 Clark, Kingston Mut. Ins. Co. v. 33 Barb. (N. Y.) 196, 139 Clark, Menifee v. 35 Ind. 304, 298 Clark V. Merriam, 25 Conn. 576, 147, 148, 153, 170 Clark, Noland v. 10 B. Mon. (Ky.) 239,' 384 Clark, Lee v. 1 HOI (N. Y.) 56, 29, 106, 524 Clark V. Oman, 15 Gray, 521, 191 Clark V. Patton, 4 J. J. Marsh. (Ky.) 33, 311 Clark, Pyke's Admr. v. 3 B. Mon. (Ky.) 262, 309 Clark V. Remington, 11 Met. (Mass.) 361, 163 Clark V. Ritchie, 11 Grant's Ch. R. 499, 350 Clark V. Roberts, 26 Mich. 506, 16 Clark, Russell v. 7 Cranch, 69, 59 Clark, St. Louis Building and Sav- ings Assn. V. 36 Mo. 601, 281 Clark V. Siokler, 64 New York, 231, 295 Clark V. Sigoumey, 17 Ct. 511, 120 Clark V. Small, 6 Yerg. (Tenn.) 418, 6, 68 Clark, Struthers ». 30 Pa. St. 210, 110 Clark, Waterman v. 76 111. 428, 203 Clark, Weed v. 4 Sandf. (N. Y. Superior Ct.) 31, 71 Clark, Whiting ». 17 Cal. 407, 296 Clark, Young v. 2 Ala. 264, 252 Clark's Exr. Buckuer v. 6 Bush, 168, 6 Section Clark's Exr. Russell v. 7 Cranch, 69, 78 Clarke v. Bell, 2 LitteU (Ky.) 164, 420 Clarke, De Castro v. 29 Cal. 11, 403 Clarke, Emery v. 2 J. Scott, (N. S.) 582, 189 Clarke v. Henty, 3 Younge & CoU. (Exch.) 187, 317 Clarke, Pond v. 14 Ct. 334, 188 Clarke v. Potter County, 1 Pa. St. 159, 475 Clarkson o. Commonwealth, 2 J. J. Marsh. (Ky.) 19, 494 Clarkson, Jenkins v. 7 Ohio, 72, 208, 298, 306 Clardy, Hendry v. 8 Fla. 77, 491 Claremont Bank v. Wood, 10 Vt. 582, 28 Clason V. Bailey, 14 Johns. 484, 66, 75 Clason, Merritt v. 12 Johns. 102, 75, 76 Clason, Sanders v. 13 Minn. 379, 52 Clay, Commonwealth v. 9 Phila. (Pa.) 121, 436 Clay V. Edgerton, 19 Ohio St. 549, 170 Clay, Goodloe v. 6 B. Mon. (Ky.) 236, 236, 288 Clay V. Schmitzell, 5 Phila. (Pa.) 441, 227 Clay, Wagnon v. 1 A. K. Marsh. (Ky.) 257, 54 Clay V. Walton, 9 Cal. 328, 56 Cleanwater, Powler v. 35 Barb. (N. Y.) 143, 53 Cleasby, Morris v. 4 Maule & Sel. 566, 57 Cleaves v. Foss, 4 Greenl. (Me.) 1, 76 Clegge, Woodward v. 8 Ala. 317, 371 Clements v. Cassilly, 4 La. An. 380, 349 Clements v. Langley, 2 Nevile & Man. 269, 240 Clendaniel, Hastings v. 2 Del. Ch. R. 165, 333 Clendenin, Johnson v. 5 Gill & Johns. (Md.) 463, 431 Clippinger i:. Creps, 2 Watts (Pa.) 45. 325 Cleveland R. R. Co. v. Connecti- cut, &c. Ins. Co. 41 Barb. (N. Y.) 70 9, TABLE OF OASES. XXX vu Section Cleyeland v. Skinner, 56 111. 500, 440 Cleveland, Thomas' Bxr. v. 33 Mo. 126, 880 Click V. McAfee, 7 Port. (Ala.) 62, 48 CUck, Rolston v. 1 Stew. (Ala.) 526, 10 Clinan c. Cooke, 1 Schoales & Le- froy, 22, 66, 76 Clinton Bank v. Ayres, 16 Ohio, 283, 95 Clinton, Western N. Y. Life Ins. Co. V. 66 New York, 326, 353 Comeg-ys v. Cox, 1 Stew. (Ala.) 262, 826 Cloclough, McLure !■. 17 Ala. 89, 363 Compton'a Exrs. v. Hall, 51 Miss. 482, 9 Clompton, Smith v. 48 Miss. 66, 18 Commonwealth, White Exrs. v. 30 Pa. St. 167, 113 Clopton, Smith v. 48 Miss. 66, 209, 317, 508 Clopton V. Spratt, 52 Miss. 251, 388 Cloret). Bailey, 6 Bush (Ky.) 77, 478 Clough, P — V. 8 Greenl. (Me.) 884, 445 Clouser, Hart v. 30 Ind. 210, 831 Cloud, Price v. 6 Ala. 248, 515, 522 Clore, Boss v. 3 Dana (Ky.) 189, 200 Clossey, Union Bank v. 10 Johns. 271, 479 Clymer v. De Young, 54 Pa. St. 118, ' 49,52 Coats V. Swindle, 55 Mo. 31, 17, 517 Coats V. McKee, 26 Ind. 233, 22, 345 Coates V. Coates, 83 Beavan, 249, 105, 375 Cobb, Atwood v. 16 Pick. 227, 67 Cobb; Bent i'. 9 Gray, 897, 76 Cobb V. Curts, 4 Littell (Ky.) 235, 13 Cobb V. Haynes, 8 B. Mou. (Ky.) 137, 222, 529 - Cobb, Howell v. 2 Cold. (Tenn.) 104, 192 Cobb V. Little, 2 Greenl. (Me.) 261, 86 Cobb, Lombard v. 14 Me. 222, 255 Cobb V. Page, 17 Pa. St. 469, 6 Cobb, Parham v. 9 La. An. 423, 412 Cobb, Webster v. 17 111. 459, 88, 147 Coble, Governor v. 2 Dev. Law (Nor. Car.) 489, 460 Section Cobuni, Conn. v. 7 New. Hamp. 368. ■ 196 Coburn v. Wheelock, 84 New York, 440, 252 Cochran, Beall v. 18 Ga. 38, 125 Cochran, Chambers v. 18 Iowa, 159, 27, 216 Cochran ». Dawson, 1 Miles (Pa.) 276, 86 Cochran, Deal v. 66 Nor. Car. 269, 296 Cochrane, Eastern Union Railway Co. 9 Wels. Hurl. & Gor. 197, 101 Cochran, United States v. 2 Brock- enbrough, 274, 293 Cocke, State v. 37 Texas, 155, 439 Cockrill V. Dye, 33 Mo. 365, 513 Codwise, Dickinson v. 1 Sandford's Ch. R. 214, 22 Cody, Studabaker v. 54 Ind. 586, 33, 164 Coe V. Duffield, 7 Moore, 252, 73 Coe V. New Jersey Midland R. R. Co. 27 New Jer. Eq. 110, 260 Coffeubury, Supervisors of St. Joseph V. 1 Manning (Mich.) 355, 12 Coffil, Allen v. 42 111. 293, 154 Coffman, Morgan v. 8 La. An. 56, 891 Coffman v. Wilson, 2 Met. (Ky.) 542, 349 Cogan, Claflin v. 48 New Hamp. 411, ■ 126 Coger's Exrs. v. McGee, 2 Bibb (Ky.)321, 852 Coggeshall ». Ruggles, 62 Bl. 401, 109, 182 Cohn, Seawell v. 2 Nevada, 808, 823 Cohen, Strohecker v. 1 Spear (So. Car.) 349, 53 Cohea v. Commissioners, 7 Smedes & Mar. (Miss.) 437, 392 Coker, Robertson v. 11 Ala. 466, 363 Colbert, Curan v. 3 Kelly (Ga.) 239,. 27, 378 Colbourn v. Dawson, 10 Com. B. (1 J. Scott) 765, 73 Colcord, New Hampshire Savings Bank v: 15 New Hamp. 119, 300, 370 Coldham v. Shower, 3 Man. Gr. & Scott, 312, 73 XXXVlll TABLE OF CASES. Section Cole, County v. Angney, 12 Mo. 132, 105 Cole, Blake v. 22 Pick. 97, 46 Cole ». Dyer, 1 Crcfe Jar. 461, 68,71 Cole, Huff V. 45 Ind. 300, 308, 331 Cole V. Justice, 8 Ala. 793, 203 Cole, Kearsley v. 16 Mees. & Wels. 128, 329 Cole, Manufacturers' Bank v. 39 Me. 188, 95 Cole V. Trecothick, 9 Vesey, 234, 66 Coleeri, Whitehurst v. 53 HI. 247, 514 Coles, Hulme v. 2 Simons, 12, 321 Coles V. Pack, Law Rep. 5 Com. PI. 65, 134 Coles V. Trecothic, 9 Vesey, 234, 75, 76 Colegate, Lynch v. 2 Harr. & Johns. (Md.) 350 Coley, McCrary v. Georgia Deci- sions, 104, 27 Coleman v. Bailey, 4 Bibb, (Ky.) 297, 76 Coleman v. Bean, 1 Abbott's Rep. Omitted Cas. (N. Y.) 394, 29, 353 Coleman, Commonwealth v. 2 Met. (Ky.) 382, 432 Coleman, Edwards v. 6 T. B. Mon. (Ky.) 567, 296, 299 Colman v. Eyles, 2 Starkie, 62, 62 Coleman v. Forbes, 22 Pa. St. 156, 120 Coleman, Stockton v. 39 Ind. 106, 202 Coleman v. Waller, 3 Younge & Jer. 212, 362 Colemard v. Lamb, 15 Wend. 329, 346 Colgin V. Henley, 6 Leigh (Va.) 85, 9, 68, 88 Colgrove v. Tallman, 2 Lansing (N. Y.) 97, 19, 23 Colgrove v. Talman, 67 New York, 95, 23, 206 Collier, Sherwood v. 3 Dev. Law (Nor. Cai-.) 380, 270 Collier, Wheeler v. Moo. & Mai. 123, 67 Collinge V. Heywood, 9 Adol. & EU. 633, 199 CoUins »..Boyd, 14 Ala. 505, 180 Collins, Crawford v. 45 Barb. (N. Y.) 269, 420 Section Collins, Corkins v. 16 Mich. 478, 60 CoUms V. Gwynne, 2 Moore & Scott, 640, 474 Collins V. Mitchell, 5 Fla. 864, 30. 408 Collins, Penn. v. 5 Robinson (La.) 213, 339 Collins V. Prosser, 1 Bam. & Cress. 682, 383 Collins V. Prosser, 3 Dow. & Ryl. 112, 383 Collins, Rankin v. 50 Ind. 158, 254 (, olt V. Root, 17 Mass. 229, 58 Colvin, Roberts B. 3 Gratt(Va.) 358, 296 Coman v. State, 4 Blaokf. (Ind.) 241, 324 Combe V. Woolf, 1 Moore & Scott, 241, 296, 298 Combe v. Woolf, 8 Bing. 156, 296, 298 Combs, Bohannon v. 12 B. Mon. (Ky.) 563, 227 Combs, Ingham's Admrs. v. 17 Mo. 558, 458 Combs V. People, 39 111. 183, 127 Comegys, Bigelowi;. 5 Ohio St. 256, 420 Comegys v. Booth, 3 Stew. (Ala.) 14, 326 Comegys v. State Bank, 6 Ind. 857, 235 Comfortt). Eisertbeis, 11 Pa. St. 13, 189 Comly, Commonwealth v. 3 Pa. St. 372, 477 Commercial Bank, Hardcastle v. 1 Harrington (Del.) 374, 281 Com. Nat. Bank, Wayne v. 52 Pa. St. 343, 104, 367 Commercial Bank «. Western Re- serve Bank, 11 Ohio, 444, 27, 380 Commissioners of Berks Co. v. Ross, 3 Binney (Pa.) 520, 377 Com. of Wash. Co. Bower v. 25 Pa. St. 69 476 Commissioners ». Canan, 2 Watts (Pa.) 107, 340 Commissioners, Cohea v. 7 Smedes & Mar. (Miss.) 437, 392 Commissioner v. Exr. of Robinson, 1 Bailey Law (So. Car.) 151, 359 Commissioners v. Mayrant, 2 Bre- vard (So. Car.) 228, 487 TABLE OF CASES. XXXIX Section Commissioners of Ripley Co. 6 Ind. 128, 18, 209, 210, 301, 327 Commissioners of Stokes Co. Davis V. 74 Nor. Car. 374, 194 Commonwealth ». Adams, 3 Bush (Ky.)41, 449 Commonwealth, Alcorn v. 66 Pa. St. 172, 207 Commonwealth, AsMns v. 1 DuvaU (Ky.) 275, 432 Commonwealth, Arents v. 18 Gratt. (Va.) 750, 34, 86 Commonwealth v. Branch, 1 Bush (Ey.) 59, 432, 433 Commonwealth, Branch v. 2 Call (Va.) 510, 451 Commonwealth v. Brassfield, 7 B. Mon. (Ky.) 447, 518 Commonwealth v. Brickett, 8 Pick. 138, 427 V Commonwealth r. Clay, 9 Phila. (Pa.) 121, 436 Commonwealth, Chapman v. 25 Gratt. .(Va.) 791, 294 Commonwealth, Clarkson v. 2 J. J. Marsh. (Ky.) 19, 494 Commonwealth v. Coleman, 2 Met. (Ky.) 382, 432 Commonwealth v. Cox's Admr. 36 Pa. St. 442, 461 Commonwealth ti. Comly, 3 Pa. St. 372, 477 Commonwealth, Crutcher v. 6 "Wharton (Pa.) 340, 425 Commonwealth, Daly v. 75 Pa. St. 331, 144 Commonwealth, Ditmars v. 47 Pa. St. 335, 481 Commonwealth ». Douglas, 11 Bush (Ky.) 607, 433 Commonwealth, Elder v. 55 Pa. St. 485, ' 278 Commonwealth, Evans v. 8 Watts (Pa ) 398, 530 Commonwealth v. Fairfax, 4 Hen. &Munf.(Va.)208, 139 Commonwealth, Finney's Admrs. V. 1 Pen. & Watta (Pa.) 240, 370 Section Commonwealth ». Gabbert's Admr. 5 Bush (Ky.) 438, 469 Commonwealth, Garber v. 7 Pa. St. 265, 532 Commonwealth v. Gilson, 8 Watts (Pa.) 214, 499 Commonwealth v. Gould, 118 Mass. 300, 524 Commonwealth, Hale ». 8 Pa. St. 415, 481 Commonwealth v. Hilgert, 55 Pa. St. 236, 499 Commonwealth, Holandsworth v. 11 Bush 617, 4 Commonwealth v. Holmes, 25 Gratt. (Va.) 771, 824, 469 Commonwealth v. Jackson's Admr. 1 Leigh (Va.) 485, 446 Commonwealth, Johnson v. 2 Duv. (Ky.) 410, 4 Commonwealth v. Johnson, 3 Cu.sh. 454, 427 Commonwealth v. Kendig, 2 Pa. St. 448, 14, 481 Commonwealth, Littles. 48 Pa. St. 387, 108 Commonwealth, M'Caraher v. 5 Watts & Serg. (Pa.) 21, 443 Commonwealth, McClure v. 80 Pa. St. 167, 493 Commonwealth, McMicken v. 58 Pa. St. 213, 439 Commonwealth, Mears v. 8 Watts, (Pa.) 223, 442 Commonwealth, Medlin v. 11 Bush (Ky.) 605, 431 Commonwealth, MiUer ». 8 Pa. St. 444. 450 Commonwealth e. Miller's Admr. 8 Serg. and Rawle, 452, 27, 378 Commonwealth, Mitchell v. 12 Bush (Ky.) 247, 426 Commonwealth, Monteith v. 15 Gratt. (Va.) 172, 29 Commonwealth, Offutt v. 10 Bush (Ky.) 212, 460 Commonwealth v. Preston, 5 T. B. Mon. (Ky.) 584, 474 xl TABLE OF OASES. Section Commonwealth v. Ramsay, 2 Duv. (Ky.)386, 4 Commonwealth v. Ray, 3 Gray, 441, 75 Commonwealth, Richards v. 40 Pa. St. 146, 392 Commonwealth v. Risdon, 8 Phila- delphia (Pa.) 23, 4'il Commonwealth v. Rogers, 53 Pa. St. 470, 501 Commonwealth, Small v. 8 Pa. St. 101, 502 Commonwealth, Smith v. 25 Gratt. (Va.) 780, 324 Commonwealth, Smith v. 59 Pa. St. 3i0, 488 Commonwealths. Sommers, 8 Bush (Ky.) 655, 483 Commonwealth, Stanton v. 2 Dana (Ky.) 397, 486 Commonwealth v. Stub, 11 Pa. St. 150, 494 Commonwealth v. Swope, 45 Pa. St. 535, 454 Commonwealth v. Toms, 45 Pa. St. 408, 142 Commonwealth v. Webster, 1 Bush (Ky.) 616, 430 Commonwealth v. Wenrick, 8 Watts (Pa.) 159, ' 495 Commonwealth, WintersoU v. 1 DuvalKKy.) 177, 433 Commonwealths. Wolbert, 6 Bin- ney (Pa.) 292, 474 Company of Proprietors of the Liverpool Waterworks v. Atkin- son, 6 East, 507, 138 Compher «. People, 12 111. 290, 469 Comstock V. Creon, 1 Robinson, (La.) 528, 378 Comstock Kimbell v. 14 Gray, 508, 59 Compton, Freeland v. 30 Miss. 424, 298 Compton, Henry v. 2 Head (Tenn.) 549, 204 Compton, Smith v. 6 Cal. 24, 361 Compton, Stone v. 5 Bing. (N. C.) 142, 864 Compton, Stone v. 6 Scott, 846, 364 Canada West, etc. Ins. Co. v. Section Merritt, 20 Up. Can. Q. B. R. 444, 111 Conant, Dana v. 30 Vt. 246, 83, 84 Conant v. Patterson, 7 Vt. 163, 438 Conant, Skinner v. 2 "Vt. 453, 63 Concord v. Pillsbury, 33 New Hamp. 810, 203 Cone, State v. 32 Ga. 668, 428 Conffdon, Pitts v. 2 New York, 352, 53 Congdon v. Read, 7 Rhode Is. 576, 136 Conkhn, Conklin v. 54 Ind. 289, 506 Conklin, DeVries v. 22 Mich. 255, 4 Conkey v. Hopkins, 17 Johns. 113, 46 Conner, Maxwell v. 1 Hill Eq. (So. Car.) 14, 209 Conner v. Williams, 2 Rob. (N. T.) 46, 52 Connecticut, &c. Ins. Co. v. Clere- land R. R. Co. 41 Barb. (N. T.) 9, 70 Connecticut Mut. Life Ins. Co. v. Boroler, 1 Holmes, 293, 345 Connerat ». Goldsmith, 6 Ga,.14, 44 Conn V. Coburn, 7 New Hamp. 368, ' 196 Consolidation Bank, Marsh v. 48 (Pa.) Stat. 510, 17, 46 Consolidated Presbyterian Society V. Staples, 23 Conn. 544, 49 Conoly V. Kettlewell, 1 Gill (Md.) 260, 62, 64 Conover v. Hill, 76 111. 342, 248 Conover, State v. 4 Dutoher (N. J.) 224, 484 Conrad v. Foy, 68 Pa. St. 381, 207 Conrad, Smith o. 15 La. An. 679, 233 Consaulus, Bradford v. 3 Cowen, 128, 431 Constable, Walker v. 1 Bos. & Pul. 306, .76 Constant, Hall v. 2 Hall (N. T.) 206, 306 Constant v. Matteson, 22 111. 546, 285 Considine v. Considine, 9 Irish Law Rep. 400, 199 Converse, Davis v. 35 Vt. 503, 363 Conway v. Bank of U. S., 6 J. J. Marsh. (Ky.) 128, 95 TABLE OF CASES. xU Section Conway, Hempstead v. 6 Ark. (1 Eng.) 317, 209 Conwell V. McCowan, 53 111., 363, 275 Copeland, Davis v. 67 New York, 127, 106 Cope V. Smith's Exrs. 8 Serg-. & Eawle (Pa.) 110, 206, 296 Copis V. Middleton, 1 Turner & Russ. 224, 278 Copis V. Middleton, 2 Turner & Euss. 224, 275 Cook, Armstrong v. SO Ind. 22, 348 Cook, Cheeney v. 7 Wis. 413, 70 Cook, Cheltenham Fire Brick Co. v, 44 Mo. 29, 518 Cook, Ii,irgroves v. 15 Ga. 9, 68 Cook, Miller v. 23 New York, 495, 70 Cook V. Orne, 87 111. 186, 147, 151, 157 Cook, Thomas v. 3 Man. & Ry. 444, 46 Cook, Thomas v. 8 Barn. & Cress. 728, 46, 58 Cook V. Southwick, 9 Texas, 615, 153 Cook, Wood V. 31 111. 271, 489 Cooke V. , Freeman's Ch. E. 97, , 230 Cooke, Clinan v. 1 Schoales & Le- froy, 22, 66, 76 Cooke V. Crawford, 1 Texas, 9, 404 Cooke, Hargroves v. 15 6a. 321, 68 Cooke V. Nathan, 16 Barb. (N. Y.) 342, 83, 348 Cooke t). Orne, 37 111. 186, 164 Cooke, Petty w. Law Rep. 6 Queen's Bench, 790, 290 Cooke, Simson v. 9 Moore, 558, 98 Coolbaugh, Ramsey v. 13 Iowa, 164, 410 Cooley, Ordinary ». 1 Vroom (N. J.) 179, 12 Coombs V. Parker, 17 Ohio, 289, 390 Coons, Norton v. 3 Denio, 310, 228 Coons, Norton v. 6 New York, 83, 226 Coons V. People, 76 111. 383, 466 Cooper, Bentham v. 5 Mees. & Wels. 621, 71 Cooper V. Chambers, 4 Dev. (N.C.) 261, 48 Cooper D.'Dedrick, 22 Barb. (N.Y.) 516, • 38, 70. 537 Section Cooper V. Evans, Law Rep, 4 Eq. Cas. 45, 210, 350 Cooper V. Fisher, 7 J. J. Marsh. (Ky.) 396, 318 Cooper, Franklin Bank v. 39 Me. 542, 367 Cooper, Franklin Bank v. 36 Me. 179, 12, 14, 365, 366 Cooper V. Jenkins, 82 Beavan, 337, 267 Cooper, Jones v. 1 Cowp. 227, 61, 63 Cooper V. Joel, 1 De Gex, Pish. & Jo. 240, 107 Cooper, Joyner v. 2 Bailey Law (So. Car.) 199, 15. 4.52 Cooper V. Martin, 1 Dana (Ky.) 23, 238 Cooper V. Page, 24 Me. 73, 81, 170 Cooper, Pepp.n v. 2 Barn. & Aid-. 431, 140 Coppook, OrreU v. 26 Law Jour. Ch. 269, 53 Cooper V. Wilcox, 2 Devereaux & Bat. Eq. (Nor. Car.) 90, 378 Coope V. Twynam, 1 Turner & Russ. 426, 224 Coope, Wade v. 2 Simons, 155, 279 Coovert, Mercer County v. 6 Watts & Serg. (Pa.) 70, 102 Coover, Henderson v. 4 Nevada, 429, 473 Corbet v. Evands, 25 Pa. St. 310, 110 Corbett, Bay Ordinary v. (So. Car.) 328, 502 Corbitfc V. Carroll, 50 Ala. 815, 445 Corbin v. McChesney, 26 111. 231, 49 Corbin, Thurber v. 51 Barb. (N. Y.) 215, 23 Corcoran, Wood v. 1 AUen (Mass.) 405, 48 Cordevoille, Merchants Bank v. 4 Robinson (La.) 506, 386 Cordle v. Burch, 10 Gratt. (Va.) 480, 29 Corduan, Dane, v. 24 Cal. 157, 208 Corielle v. Allen, 13 Iowa, 289, 17, 309 Corprew v. Boyle, 24 Gratt. (Va.) 284, 463 Corkins v. Collins, 26 Mich. 478, 50 Cornell i). Prescott, 2 Barb. (N. Y.) 16, 24 xlii TABLE OF OASES. Section Comwell's appeal, 7 Watts & Serg. (Pa.) 305, 267 Cornwall, Baker v. 4 Cal. 15, 68 Cornwall v. Holly, 5 Richardson Law (So. Car.) 47, 310 Corporation of Chatham v. McCrea, 12 Up. Can. C. P. R. 352, 84 Corporation of Huron v. Arm- strong, 27 Up. Can. Q. B. R. 538, 349 Corporation of Ontario ». Paxton, 27Up.Can. C. P. R. 104, 472 Corporation of Whitby v. Harrison, 18 Up. Can. Q. B. R. 606, 445 Corwin, Fithian v. 17 Ohio St. 118, 297 Corwine, United States v. 1 Bond, 339, 347 Cory V. Leonard, 56 New York, 494, 281 Cosby, P. & M. Bank of Lexington V. 4 J. J. Marsh. (Ky.) 366, 328 Coshow, Howard v. 33 Mo. 118, 58 Coste, State v. 36 Mo. 437, 532 Coster V. Meaner, 58 Mo. 549, 305 Coster's Exr. Union Bank ». 3 New York, 203, 67, 73, 167, 173 Gotten, Exr. Mitchell v. 3 Fla. 134, 363 Cotten, Mitchell v. Exr. 2 Florida, 136, 290 Couch V. Terry, 12 Ala. 225, 2 ,3 Couch V. Waring, 9 Ct. 261, ' 124 Courtis V. Dennis, 7 Met. (Mass.) 510, 163 Coulter, Schmidt v. 6 Minn. 492, 236 Countryraan, Dunham v. 66 Barb. (N.Y.) 268, 313 Courts, Burnet v. 5 Harr. & Johns. (Md.) 78, • 292 Coupland, Wilson ». 5 Bam. & Aid. 228, 52 Council Bluffs Bank, Jones v. 34 111. 31.3, 53 Couturier v. Hastie, 5 House of Lords Cas. 673, 57 Couturier, Hastie v. 9 Wels. Hurl. & Gor. 102, 57 Couturier v. Hastie, 8 Wels. Hiirl. & Gor. 40, 57 County of Fontenac v. Breden, 17 Grant's Ch. R. 645, 450, 474 3ECTI0S County of Macoupin, Miller ». 2 Gilman (111.) 50, 463 County Co. of Ramsey Co. v. Bria- bin, 17 Minn. 451, 445 County of Schuylkill, Bochmer, v. 46 Pa. St. 452, 446 County 6f Wapello v. Bingham, 10 Iowa, 39, 464 Covington, Board of Police of Clark Co. v. 26 Miss. 470, 298, 323 Covington, Haynes v. 9 Smedes & Mar. (Miss.) 470, 296 Covilliaud, Williams v. 10 Cal. 419, 318 Covert, Bank of Upper Canada ». 5 Up. Can. K. B. R. (0. S.) 541, 342 Cowan V. Baird, 77 Nor. Car. 201, 349 Cowan V. Duncan, Meigs (Tenn.) 470, 227 Cowan, Morrell v. Law Rep. 6 Bq. Div. 166, 9, 109 Cowell V. Edwards, 2 Bos. & Pull. 268, 252 Cowles, Atlantic & N. C. R. R. Co. V. 69 Nor. Car. 59, 477 Cowgill, Gojring V. 12 Iowa, 495, 480 Cowper V. Smith, 4 Mees. & Wels. 619, 126 Cox, Bonser v. 4 Beavan, 379, 103, 850 Cox, Bonser v. 6 Beavan, 110, 103 Cox, V. Brown, 6 Jones Law (Nor. Car.) 100, 168 Cox, Comegys v. 1 Stew. (Ala.) 262, 326 Cox's Admr. Commonwealth v. 36 Pa. St. 442, 461 Cox, High e. 55 Ga. 662, 211 Cox, Keaton v. 26 6a. 162, 82 Cox, Lanadale ». 7T. B. Mon. (Ky.) 401. 220 Cox®. Mobile & Girard R. R; Co. 37 Ala. 320, 298, 309 Cox V. Mobile and Girard R. R. Co. 44 Ala. 611, 309 Cox, Reid v. 5 Blackf. (Ind.) 312, 511 Cox V. Thomas' Admx. 9 Gratt. (Va.) 312, 25, 29 Cozens, Jemison v. 3 Ala. 636, 405 Crabtee, McHaney v. 6 T.-B. Mon (Ky.)104. . • ; 378 TABLE OF OASES. xliii Section Craddock v. Armor, 10 Watts (Pa.) 258, 115 Craft V. Dodd, 15 Ind. 380, 607 Craft, Moss v. 10 Mo. 720, 380 Craft V. Isham, 13 Ct. 28, 161, 174, 175 Crafts, Crosby v. 5 Hun (N. T.) 327, 283 Crafts V. Mott, 4 New York, 604, 25 Craig V. Calloway County Ct. 12 Mo. 94, 120 Craig V. Craig, 5 Eawle (Pa.) 91, 176 Craig, Force v. 2 Halstead (N. J.) 272, 296 Craig V. Hobba, 44 Ind. 363, 354 Craig V. Parkis, 40 New York, 181, 34, 82, 85 Craig V. Phipps, 28 Miss. 240, 84 Craig V. Van Pelt, 3 J. J. Marsb. (Ky.) 489, 38 Cramer, Greene v. 2 Conner & Law. 64, 76 Cramm, Simeon v. 121 Mass. 492, 407 Crane, Carville v. 5 Hill, 483, 45, 60 Crane v. Gough, 4 Md. 316, 38 Crane, Hayden v. 1 Lansing (N. Y.) 181, " 136 Crane, Humphreys v. 6 Cal. 173, 296 Crane, Jewett v. 35 Barb. (N. Y.) 208, 216 Crane v. Newell, 2 Pick. 612, 368 Crane Bros. Man. Co. Penny v. 80 lU. 244, 82 Crane v. Stickles, 15 Vt. 2.52, 370 Cranston, United States ». 3 Cranch, 289, 483 Crapo V. Brown, 40 Iowa, 487, 111 Crawford v. Andrews, 6 6a. 244, 485 Crawford Co. Cannell v. 59 Pa. St. 196, 457 Crawford, Cook v. 1 Texas, 9, 404 Crawford v. Collins, 45 Barb, (N. Y.) 269, 420 Crawford, v. Foster, 6 6a. 202, 349, 686 Crawford v. Gaulden, 33 6a. 173, 27, 306 Crawford, Helen v. 44 Pa. St. 105, 207 Crawford, Hikes v. 4 Bush (Ky.) 19, 186 Section Crawford v. Howard, 9 6a. 314, 444,487 Crawford v. King, 54 Ind. 6, 49 Crawford, Marcy v. 16 Conn. 549, 46 Crawford v. Penn, 1 Swan, (Tenn.) 388, • 492 Crawford v. Stirling, 4 Esp. 207, 10 Crawford, Tiffany v. 1 McCarter, (N. J.) 278, 362 Crawford «. Turk, 24 6ratt. (Va.) 176, 531 Crawford v. Word, 7 6a. 445, 485, 631 Crawley, Hanson v. 41 6a. 303, 333 Craythome v. Swinburne, 14 Vesey, 160, 226, 230 Creagh, Waters v. 4 Stew. & Port. (Ala.) 410, 211 Creager v. Brengle, 5 Harris & Johns. (Md.) 234, 281 Crease's Exr. Smith v. 9 Cranch C. C. 481, 209 Creasor, Sloan v. 22 Up. Can. Q. B. R. 127, 340 Creasy, Hay craft v. 2 East, 92, 59 Creath's Admr. v. Sims, 5 How. (U. S.) 192, - 296 Creigh v. Hedrick, 5 West Va. 140, 18 Creighton, Krafts v. 3 Richardson Law (So. Car.) 273, 186 Creighton v. Rankin, 7 Clark & Finnelly, 326, 474 Cremer v. Higginson, 1 Mason, 323, 98, 136, 163 Creon, Comstock v. 1 Robinson (La.) 628, 378 Creps, Clippinger v. 2 Watts (Pa.) 45, 325 Cresson, Bank of the Northern Liberties v. 12 Serg. & Rawle (Pa.) 306, 444 Cressy ■». Gierman, 7 Minn. 398, 481 Creswell, 6reen v. 10 Adol. & Ell. 463, Id. 2 Perry & Dav. 430, 46, 47 Creswell, Hall's Admr. v. 12 Gill & Johns. (Md.) 36, 182 Creyon, Leland v. 1 McCord, (So. Car.) 100, 61, 64 Crickett, Mayhew v. 2 Swanston, 185, 378, 380 xliv TABLE OF CASES. Section Crickett, Mayhew v. 2 Swanston, 193, 221 Crim «. Fitch, 53 Ind. 214, 68 Cripps V. Hartnoll, 4 Beat & Smith, 414, 45, 46 Crist V. Burhngame, 62 Barb. (N. Y.) 351. 78, 133 Critchfleld, Bush v. 5 Ohio, 109, 112 Crittenden, Hank v. 2 McLean, 557, 172 Crookford, Knights. 1 Esp. 190, 75 Crocker v. Gilbert, 9 Cush. 181, 89 Crockett, Green v. 2 Dev. & Bat. Eq. 390, 204 Crockett, Rodes v. 2 Terg. (Tenn.) 346, 213 Crockett, Trotter v. 2 Porter (Ala.) 401, 884 Croft, Bailey v. 4 Taunt. 611, 7 Croft V. Johnson, 5 Taunt. 819, 425 Croft V. Moore, 9 Watts (Pa.) 451, 269 Croft, Thomas v. 2 Richardson Law So. Car. 113, 8 Crofts V. Beale, 11 Com. B. 172, 8 Crofts V. Johnson, 1 Marshall, 59, 296 Croughton v. Duval, 3 Call (Va.) 69, 208 Crooker, Smith v. 5 Mass. 538, 336 Cro.sby v. Crafts, 5 Hun (N. J.) 327, 283 Crosby v. Middleton, Pinch's Pre- cedents, 309, 118 Crosby, Stafford Bank v. 8 Greenl. (Me.) 191, 299 Crosby v. Wyatt, 23 Me. 156, 226, 259, 305 Crosby v. Wyatt, 10 New Hamp. 318, 259, 299, 305 Crosthwaite, Jones v. 17 Iowa, 393, 128 Cross, Apperson v. 5 Heisk. (Tenn.) 481, 296 Cross V. Ballard, 46 Vt. 415, 115 Cross, Firemans' Ins. Co. v. 4 Rob. (La.) 508, 4 Cross V. Richardson, 30 Vt. 641, 50 Cross V. Richardson, 30 Vt. 647, 55 Cross V. Rowe, 22 New Hamp. 77, 94 Cross, Skiff u. 21 Iowa, 459, 277 Cross V. Sprigg, 2 Macn, & Gor. 113, 322 Section Cross V. Sprigg, 2 Hall & Twells, 223, 322 Cross V. Wood, 30 Ind. 378, 309 Crothwaite, Penrice v. 11 Martin (La.) 0. S. 537, 438 Crouse v. Paddock, 8 Hun (N. Y.) 680, 440 Crow V. Murphy, 12 B. Men. (Ky.) 444, 269 Crowder v. Denny, 3 Head (Tenn.) 539, 253 Crowdus V. Shelby, 6 J. J. Marsh. (Ey.) 61, 178 Croydon Gas Co. v. Dickinson, Law Rep. 2 Com. PI. Div. 46, 322 Croydon Gas Co. v. Dickinson, Law Rep. 1 Com. PI. Div. 707, 322 Crozier v. Grayson, 4 J. J. Marsh. (Ky.) 514, 182 Crump, Ennis v. 6 Texas, 85, 503, 510 Crump t: McMurtry, 8 Mo. 408, 265 Cruger, Burke v. 8 Tex. 66, 18, 320 Cruger Gosman v. 7 Hun, 60, 4 Curan v. Colbert, 3 Kelly (Ga.) 239, 27, 378 Culbertson v. Stillinger, Taney's Decisions (Campbell) 75, 195 Curd, Landis v. 63 Mo. 104, 218 Curiae v. Packard, 29 Cal. 194, 295 Curl, Thwaits v. 6 B. Mon. (Ky.) 472, 63 Ciillum V. Branch Bank at Mobile, 23 Ala. 797, 282 CuUum V. Emanuel, 1 Ala. 23, 261 CuUum V. Gainer 1 Ala. 23, 82 Cully, City of Paducah v. 9 Bush (Ky.) 323, . 29 Culver, Allen v. 3 Denio, 284, 34, 286 Cummings v. Arnold, 3 Met. (Mass.) 486, 67 Cummings v. Bank of Montreal, 15 Grant's Ch. R. 686, 312 Cummins v. Garretson, 15 Ark. 182, 505 Cummins, Kimble v. 3 Met. (Ky.) 327, 184 Cummings v. Little, 45 Me. 183, 17, 20, 115, 370 Cummings, Richter v. 60 Pa. St. 441, 270 TABLE OF CASES. xlv Section Cunningham, Mowbray v. Hilary Term, 1773, Jones v. Cooper, 1 Cowp. 227, 61 Cunningham, Oshom v. 4 Dev. & Bat. Law (Nor. Car.) 423, 242 Cunningham, State v. 10 La. An. 393, 427, 435 Cunningham v. Wrenn, 23 III. 64, 350 ■ Cumpston v. McjSTair, 1 Wend. 457, 82 Currier v. Baker, 51 New Hamp. 613, 245 Currier v. Fellows, 27 New Hamp. 366, 233, 238 Currier, Klein v. 14 111. 237, 147, 149 Currie, Small v. 2 Drew. 102, 5, 865 Currie, Small v. 5 De Gex, Maon. & Gor. 141, 345 Curtis, Ryde v. 8 Dow. & Ey. 62, 70 Curry v. Bank of Mobile, 8 Port. (Ala.) 360, , 333 Curry, Bonta v. 3 Bush (Ky.) 678, 385 Curry, People v. 59 lU. 35, 461 Curry's Exrs. Lucas v. 2 Bailey Law (So. Car.) 403, 496 Curtcher v. Trabue, 5 Dana (Ky.) .80, 202, 800 Crutcher v. Commonwealth, 6 Wharton, (Pa.) 340, 425 Crutcher, Whitaker v. 5 Bush (Ky.) 621, 355 Crutcher, Winhkm v. 2 Tenn. Ch. R. V. (Cooper) 535, 82 Curts, Cobb p. 4 Littel (Ky.) 235, 13 Curtis, Austin v. 31 Vt. 64, . 319 Curtis V. Blair, 26 Miss. 309, 76 Curtis V. Brown, 5 Cush. 488, 48, 50 Curtiss, Browne. 2 New York, 225, 53,86 Curtis I'. Dennis, 7 Met. (Mass.) 510, 1 Curtis V. Hubbard, 6 Met. (Mass.) 186, 337 Curtis V. Moss, 2 Robinson (La.) 367, 127 Curtis V. Tyler, 9 Paige, Ch. R. 432, 282 Cuthbert ». Huggins, 21 Ala. 349, 458 Gushing, McCollum v. 22 Ark. 540, 157, 158, 169 Section Cushman v. Dement, 3 Scam. (111.) 497, 147 Cushman, Hall v. 16 New Hamp. - 462, 233 Cushman, United States v. 2 Sum- ner, 426, 117 Cutler, Field v. 4 Lans, (N. Y.) 195, 206 Cutler V. Hinton, 6 Rand. (Va.) 509, 64 Cutler, Jermess v. 12 Kansas, 500, 22, 310 Gust, Hope V. cited in Sheriff v. Wilks, 1 East 53, 10 Cutter V. Emery, 37 New Hamp 567, 46, 229 Cutter V. Evans, 115 Mass. 27, 408 Cutter, Fisher v. 20 Mo. 206, 102 Cutter, Irish v. 31 Me. 536, 35, 155 Cutter, Singley ». 7 Conn. 291, 72 Cutter, United States v. 2 Curtis, 617, 475, 521 Cutts, Read v. 7 Greenl. 186, 1, 172 Cuvillier, Bank of British North America v. 14 Moore's Privy Council, Cas. 187, 145 Cuxon». Chandley, 3 Bam. & Cres. 591, 52 Cuyler v. Ensworth, 6 Paige Ch. R. 22, 243 Cuyler, White v. 1 Esp. 200, 44 Cuyler, White v. 9 Dum. & East ' 176, 215 Cuyler, White v. 6 Term R. 176, 44 Dabney, Thornton v. 23 Miss. 559, 298 Dagle, Succession of, 15 La. An. 594, 24 Dair v. United States, 16 Wallace, 1, 355 Daly V. Commonwealth, 75 Pa. St. 331, 144 Dale, Follmer v. 9 Pa. St. 83, 297 Dale, Robinson v. 38 Wis. 330, 318 Dana v. Conant, 30 Vt. 246, 83, 84 Dana, Downer v. 17 Vt. 518, 203 Dana, McMillan v. 18 Cal. 339, 408 Dana, Whittier v. 10 Allen, 826, 67 Dance v. Girdler, 4 Bos. & Pul. 34, 344 xlvi TiBLE or CASES. Section Dane v. Corduan, 24 Cal. 157, 208 Danker v. Atwood, 119 Mass., 146, 15 Danu, Smith v. 6 Hill (N. T.) 543, 103, 167 Dannah, Wright v. 2 Camp. 203, 76 Daniel v. Ballard, 2 Dana (Ky.) 296, 229, 254 Daniel, Chairman of Schools v. 6 Jones' Law (Nor. Car.) 444, 146 Daniel, Isaac v. 8 Adol. & Ell. (N. S.) 500, 296 Daniel v. Joyner, 8 Ired. Eq. (Nor. Car.) 513, 190 Daniel v. McRae, 2 Hawks (Nor. Car.) 590, 225 Daniels v. Barney, 22 Ind. 207, 11 Daniels, Thayer v. 110 Mass. 345, 199 Dansey, Adams v. 6 Binff. 506, 46 Dandridge, Dibrell v. 51 Miss. 55, 515 Dandridge, Spottswood v. 4 Munf. (Va.) 289, 495 Danner, Hartman v. 74 Pa. St. 36, 810 Danforth v. Sample, 7 Chicago Le- gal News, 203, 309 Darnell, Birkmyr v. 1 Salk. 27; Id. 2 Ld. Raym. 1,085, 40, 42, 63 Darnall, Buckmyi- v. 6 Mod. 248, 42 Damall r. Tratt, 2 Ca,r. & P. 82, 44 Darragh, Sale v. 2 Hilton (N. Y.) 184, 67 Darragh, Tenth Natl.' Bank «. 1 Hun (N. Y.) Ill, 518 Darwin, Gillespie v. 6 Heisk. (Tenn.) 21, 387 Dart V. Sherwood, 7 Wis. 523, 115 Darlington v. McCunn, 2 E. ' D. Smith (N. Y.) 411, 62 Darst V. Bates, 51 111. 439, 190, 282 Darling, Barnard v. 11 Wendell, 28, 489 Darling v. McLeaa, 20 Up. Can. Q. B. R. 372, 316 Darter v. State, 5 Blackf. (Ind.) 61, 519 Dauber v. Blackney, 38 Barb. (N. Y.) 432, S3 Davidson, Antrolus v. 8 Merivale, 669-79, 192, 205 Davison, Stull v. 12 Bush (Ky.) 167, 121 Section Davis V. Banks, 45 Ga. 138, 9 Davis V. Board of Comm'rs, 72 Nor. Car. 441, 194 Davies, Calvo v. 8 Hun (N. Y.) 222, 24 Davis V. Commonwealth of Stokes Co., 74 Nor. Car. 374, 194 Davis V. Converse, 35 Vt. 503, 363 Davis V. Copeland, 67 New York, 127, 106 Davis ». Emerson, 17 Me. 64, 247 Davis, Puller v. 1 Gray, 612, 481 Davis, Hathaway v. 33 Cal. 161, 392 Davis, Hayes v. 18 New Hamp., 600, 233 Davis, Hollister v. 54 Pa. St. 508, 208,287 Davis V. Hoopes, 33 Miss. 173, 120 Davies v. Humphreys, 6 Mees. & Wels. 153, 177, 178, 199, 251, 259 Davis V. Huggins, 3 New Hamp. 231, ' 208 Davis Sewing Machine Co. v. Jones, 61 Mo. 409, 164 Davis V. Kingsley, 13 Ct. 285, 519 Davis V. Lane, 10 New Hamp. 156, 307 David V. Malone, 48 Ala. 428, 296 Davidson, Menard v. 3 La. An. 480, 341 Davis V. Mikell, 1 Preem. Ch. R. (Miss.) 548, 17, 27, 378 Davis Sewing Machine Co. v. Mc- Ginnis, 45 Iowa, 588, 100 Davifjs, Offord v. 12 J. Scott (N. S.) 748, 114 Davis, Partridge v. 20 Vt. 499, 33, 154 Davis V. Payne. 45 Iowa, 194, 508 Davis V. People, 1 Gilman (111.) 409, 824 Davis, Pintard v. 1 Spencer (N. J.) 205, 208 Davis, Pintard v. 1 Zabriskie (N. J.) 682, 208 Davis, Preston v. 8 Ark. (3 Eng.)' 167, 115 Davis, Pritchard v. 1 Spencer (N. J.) 205, 18 Davis, Protection Ins. Co. v. 5 Allen, 54, i66, 173 TABLE OF OASES. xlvii Section Davies, Royal Ins. Co. v. 40 Iowa, 469, 113 Davis, Sample v. 4 Greene (Iowa), 117, 483 Davis V. Shields, 26 Wend. 354, 75 Davis V. Shields, 24 Wend. 322, 75 Davis V. Smith, 5 Ga. 274, 273 Davis V. Stainbank, 6 De Gex. Macn. & Gor. 679, 210 Davis V. Statts, 43 Ind. 103, 128 Davis, Taylor v. 38 Miss. 493, 608 Davis, Thomas v. 14 Pick. 353, 161, 163 Davis, Tucker v. 15 Ga. 573, 434 Davis, Willis v. 3 Minn. 17, 370 Davis, Worcester Co. Institution v. 13 Gray, 631, 175 Davis' Exr., Stewart v. 18 Ind. 74, 352 Daviess Co. Sav. Ass'n v. Sailor, 63 Mo, 24, 218 Davies v. Stainbank, 6 De Gex, Macn. & Gor. 679, 312, 322 Davies, Turner v. 2 Esp. 478, 229 Davidson v. Farrell, 8 Minn. 258, 514 Davidson, Pope ». 6 J. J. Marsh. (Ky.) 400, 191 Davy, Dry v. 2 Peny & Dav. 249, 98 Davey v. Prendergrass, 6 Bam. & Aid. 187, 327 Davids, Jones v. 4 Russell, 277, 273 Dawley, Femald v. 26 Me. 470, 226 Dawson v. Bank of Whitehaven, Law Rep. 4 Ch. Div. 639, 22 Dawson, Cochran v. 1 Miles (Pa.) 276, 86 Dawson, Colboum v. 10 Com. B. (1 J. Scott) 765, 73 Dawson v. Pettway, 4 Dev. & Batt. Law (Nor. Car.) 396, 226 Dawson, Toomer ». Cheves (So. Car.) 68, 66 Dawson, Wilson v. 52 Ind. 513 376 Day V. Billingsby, 3 Bush (Ky.) 167, 516 Day, Bishop v. 13 Vt. 81, 192 Day, Chase v. 17 Johns. 114, 62, 63 Day». Ehnore, 4 Wis. 190, 70,82,84 Day, Flint v. 9 Vt. 345, 161 Section Day, Holmes v. 108 Mass. 563, 242 Day, James v. 37 Iowa, 164, 24 Day, Marsh v. 18 Pick. 321, 106 Day, Pickering v. 2 Delaware Ch. R. 333, 294, 478 Day, Pickering v. 3 Houston (Del.) 474, 294, 368, 457 Day V. Swann, 13 Me. 165, 179 Deadman, Ellis v. 4 Bibb (Ky.) 462, 66 Dean, Caruthers v. 11 Smedes & Mar. (Miss.) 178, 382 Dean, Morton v. 13 Met. (Mass.) 335, 66, 76 Dearborn v. Parks, 5 Greenl. (Me.) 81, 52 Deardorff v. Foreman, 24 Ind. 481, 354 Deal V. Cochran, 66 Nor. Car. 269, 296 Deacon, Pearl v. 24 Beavan, 186, 291 Deacon, Pearl v. 1 De Gex & Jones 461, 291 De Bail v. Thomson, 3 Beav. 469, 66 Deberry v. Adams, 9 Yerg. (Tenu.) 62, 18 Deblois v. Earle, 7 Rhode Is. 26, 90 Decbaums, Reynolds v. 24 Tex. 174, 4 De Castro v. Clarke, 29 Cal. 11, 403 Decker v. Anderson, 39 Barb. (N. Y.) 346, 420 Decker v. Gaylord, 8 Hun (N. Y.) 110, 90 Decker B.Judson, 16 New York, 439, 29 DeCottes v. Jeffers, 7 Florida, 284, 193 Dederer, Yale v. 18 N. Y. 265, 4 Dedrick, Cooper v. 22 Barb. (N. Y.) 616, 33, 70, 537 Dedham Bank v. Chiokering, 3 Pick. 335, 145 Dedham Bank v. Chickerihg, 4 Pick. 314, 479 Deering v. Earl of Winchelaea, 2 Bos. & Pul. 270, 221 Deering v. Earl of Winchelsea, 1 Cox, 318, 221 Deforest, Drakeley v. 3 Conn. 272, 49 De Graw, Oshiel v. 6 Cowen, 63, 93 Deitzler v. Mishler, 37 Pa. St. 82, 25 Deifendorf, Elwood v. 5 Barb. (N. Y.) 398, 181 xlviii TABLE OF CASES. Section De Jarnete, Tyus v. 26 Ala. 280, 234, 261 Delaplaine v. Hitchcock, 4 Ed- ward's Ch. 321, 27 Delaney v. Tipton, 3 Hayw. (Tenn.) 14, 192 Delaoour v. Caulfieid, 1 Irish Com. Law R. 689, 459 Dement, Cushman v. 3 Scam. (111.) 49r, 147 Demarest, Chelmsford Company v. 7 Gray, 1, 140,518 Dempsey v. Bush, 18 Ohio St. 376, 270 Dening, Taylor v. 3 Nev. & Per. 228, 75 Denison v. Gibson, 24 Mich. 187, 21, 22, 104, 201 Dennison v. Soper, S3 Iowa, 183, 176 Denniaon, Stone v. 13 Pick. 1, 38 Dennett, Ingalls v. 6 Greenl. (Me.) 79, 176 Dennie, Harrington v. 13 Mass. 93, 430 Denny, Crowder v. 3 Head (Tenn.) 539 i 253 , Denton, Fairlie v. 8 Barn. & Cress. 395, 52 Denton, Fairlie v. 2 Man. & Ry. 353, 52 Demass, Reusch v. 34 Mich. 95, 418 Dennard v. State, 2 Kelly (Ga.) 137, 432 Dennett, Haines «. 11 New H. 180, 333 Dennett, McCann «. 13 New Hamp. 528, 295 Dennis, Courtis v. 7 Met. (Mass.) 510, 1, 163 Dennis ». Gillespie, 24 Miss. 581, 228 Dennis, Mayor of Cambridge v. Ell. Black. & Ell. 660, 141 Denson v. MiUer, 33 Ga. 275, 504 De Peyster, Wheelwright v. 4 Ed- wards' Ch. R. 232, 822 Depriest, Franklin's Admr. «. 13 Gratt. (Va.) 257, 30 Deputy, Redman v. 26 Ind. 338, 309 Dering, Baker v. 8 Adol. & Ell. 94, 75 Derrickson, Waples v. 1 Harring- ton (Del.) 134, 435 Sectioit Derry Bank v. Baldwin, 41 New Hamp. 434, 28 Derry Bank, Heath v. 44 New Hamp. 174, 28, 20p Derossett v. Bradley, 63 Nor. Car. 17, 245 Derrickson, Dickerson v. 39 111. 574, 171 Desilver, Estate of, 9 Phila. (Pa.) 302, 114 Detroit v. Weber, 26 Mich. 284, 474, 476 Detroit v. Weber, 29 Mich. 24, 468 Deuil V. Martel, 10 La. An. 643, 300 DeVries v. Conklin, 22 Mich. 255, 4 Devlin v. Woodgate, 34 Barb. (N. T.) 252, 53 Devon, Carpenter v. 6 Ala. 718, 27 Devendorf, Albany City Fire Ins. Co. V. 43 Barb. (N. Y.) 444, 317 Devore v. Mundy, 4 Strobhart Law (So. Car.) 15, 315 Devers v. Ross, 10 Gratt. (Va.) 252, 327 Devinney v. Lay, 19 Mo. 646, 503 DeWitt V. Bigeiow, 11 Ala. 480, 296 De Witt, Mitchell v. 25 Texas (Sup- plement) 180, 227 Dewey, Burgess v. 33 Vt. 618, 810 Dewey v. Reed, 40 Barb. (N. T.) 16, 331 Dewees, Scott v. 2 Texas, 153, 510 Dexter v. Blanchard, 11 Allen, 365, 44 De Young, Clymer v. 54 Pa. St. 118, 49, 52 Diamond v. Petit, 3 La. An. 37, 404 Dibrell v. Dandridge, 51 Miss. 55, 515 Dickenson v. Turner, 15 Ind. 4, 156 Dick, Lee v. 10 Peters, 432, 157, 159 Dick V. Stoker, 1 Devereux Law (Nor. Car.) 91, 426 Dickey v. Rogers, 19 Martin (La.) 7 N. S. 588, 178, 198 Dickson o. McPherson, 3 Grant's Ch. Appl. R. 185, 361 Dickason v. Bell, 13 La. An. 249, 125 Dickerson, Bessinger v. 20 Iowa, 260, 481' Dickerson u. Commissioners of Rip- ley Co. 6 Ind. 128, 17, 209, 210, 301, 827 TABLE OF OASES. xlix Section Dickerson v. Derrickson, 39 111. 574, 171 Dickerson, Placer County v. 45 Cal. 12, 459, 521 Dickerson, Thompson v. 22 Iowa, 360, 462 Dickerson, Toomer v. 37 Ga. 428, 389 DicMnson v. Codwise, 1 Sandford's Ch. E. 214, 22 Dickinson, Croydon Gas Co. v. Law Rep. 1 Com. PI. Div. 707, 322 Dickinson, Croydon Gas Co. v. Law Kep. 2 Com. PI. Div. 46, 322 Dickinson, Hunter v. 10 Humph. {Tenn.)37, 170 Dickinson, Morley v. 12 Cal. 561, 378 Dickinson, Smith ». 6 Humph. (Tenn.) 261, 35 Dierker, Britton v. 46 Mo. 591, 331 Dietrich v. Mitchell, 43 lU. 40, 149 Diffenderfer, Winder v. 2 Bland's Ch. (Md.) 166, 260 Dikeman, People v. 3 Abb. Rep. Om. Cas. 520. 485 DiUou V. Holmes, 5 Nebraska, 484, 208 DUlon V. Russell, 5 Nebraska, 484, 296 Dillon, St. Albans Banks. 30 Vt. 122, 128 Dillingham v. Jenkins, 7 Smedes & Mar. (Miss.) 479, 359 Dillingham, Montgomery v. 3 Smedes & Mar. (Miss.) 647, 296, 519 Dill, Root V. 38 Ind. 169, 507 Dills V. Cecil, 4 Bush (Ky.) 579, 382 Dilts V. Parke, 1 South. (N. J.) 219, 49 Dilts, Stout V. 1 South. (N.J.) 218, 277 Dillahunty, Brown v. 4 Smedes & Mar. (Miss.) 718, 429 Dinkins v. Bailey, 23 Miss. 284, 272 Diusmore, Hilton v. 21 Me. 410, 49 District Township of Union v. Smith, 39 Iowa, 9, 477, 478 Ditmars v. Commonwealth, 47 Pa. St. 335, 481 Dixon v'. Caskey, 18 Ala. 97, 458 Dixon V. Dixon, 31 Vt. 450, 354 D Section Dixon V. Swing's Admrs. 3 Ohio, 280, 378 Dixon V. Frazee, E. D. Smith (N. T.) 32, 62, 64 Dixon V. Hatfield, 2 Bing. 439, 63 Dixon, Montpelier Bank v. 4 Vt. 587, 381 Dixon, Sykes ». 9 Adol. & Ell. 693, 71 Doak, Smith v. 3 Tex. 215, 18, .349 Doane v. Telegraph Co., 11 La. An. 504, 108 Dobbins, Jordon v. 122 Mass. 168, 114 Dobbs V. Justices, 17 Ga. 624, 478, 485, 521 Dobson-K. Prather, 6 Ired. Eq. (Nor. Car.) 31, 379 Dobyns v. McGovem, 15 Mo. 662, 498 Dock V. Hart, 7 Watts & Serg. 172, 38 Dodd, Craft v. 15 Ind. 880, 507 Dodd, Governors. 81111. 162, 453 Dodd S.Winn, 27 Mo. 501, 383 Dodgson, Johnson v. 2 Mees. & Wels. 653, 66, 75 Dodge, Johnson v. 17 111. 433, 76 Dodge V. Lean, 13 Johns. 508, 67 Dodge, Mackay «. 5 Ala. 388, 99 Dodge, Thomas v. 8 Mich. 51, 67, 83 Dodge V. Tan Lear, 5 Cranch (C. C.) 278, 66 Doepfner v. State, 36 Ind. Ill, 480 Dohlonde, Boykin v. 1 Sel. Cas. Ala. 502, 62 Doidge, Melville v. 6 Man. Gr. & Scott, 450, 479 Dolby V. Jones, 2 Dev. Law (Nor. Car.) 109, 394 Dole V. Yoimg, 24 Pick. 250, 175 Doles, Jones v. 3 La. An. 588, 524 Doman, Rindskopf v. 28 Ohio St. 516, 119, 300 Donner, Prickee v. 35 Mich. 151, 819 Donaldson, Yates v. 5 Md. 389, 17 Doneghy, BoUing v. 1 DuvaU (Ky.) 220, 254 Donley v. Bush, 44 Texas, 1, 155 Donally v. Wilson, 5 Leigh (Ya.) 329, 291 Doody, Carpenter v. 1 Hilton (N. T.) 465, 485, 487 1 TABLE OF CASES. Section Doolittle V. DwigM, 2 Met. (Mass.) 561, 181, 237 Doolittle V. Naylor, 2 Bosw. (N. Y.) 206, 51 Dorman v. Bigelow, 1 Fla. 281, 73, 74 Dorman ». Executor of Richard, 1 Florida, 281, 68 Dorsey, Neptune Ins. Co. v. 3 Md. Ch. K. 334, 266 Dorsey v. Wayman, 6 Gill (Md.) 59, 392 Dorwin, Austin v. 21 Vt. 38, 301, 306, 309 Dorr, Supervisors of Albany v. 7 Hill (N. Y.) 583, . 477 Doty V. Ellsbree, 11 Kansas, 209, 452 Dougherty, Houston v. 4 Humph. (Tenn. ; 505, 515 Dougherty, McDougald v. 14 Ga. 674, 271 Dougherty v. Peters, 2 Robinson (La.) 534, 487 Dougherty v. Richardson, 20 Ind. 412, 27 Doughty V. Bacot, 2 Desaussure, Eq. (So. Car.) 546, 20 Doughty V. Savage, 28 Ct.,146, 350,366 Douglass, Atlanta National Bank ». 51 Ga. 205, 338 Douglass, Artoher v. Denio, 509, 127 Douglass, Bank v. 4 Watts (Pa.) 95, 283 Douglas, Commonwealth v. 11 Bush (Ky.) 607, 433 Douglas, Irael v. 1 H. Blackstone, 239, 52 Douglas, Municipal Corp. of East Zora V. 17 Grant's Ch. R. 462, 365, 474 Douglass, Glazier v. 32 Ct. 393, 374 Douglass V. Howland, 24 Wend. 35, 68, 70, 171, 524 Douglass V. Rathbone, 6 Hill, 143, 168 Douglass V. Reynolds, 7 Peters, 113, 78, 80, 134, 157, 163, 168, 384 Douglass, Reynolds v. 12 Peters, 497, 172, 173, 175 -Douglass V. Spears, 2 Nott & McC (So. Car.) 207, 75 Sectios Douglass V. State, 44 Ind. 67, 305 Donsay, Mason v. 35 111. 424, 53 Dow, Greely v. 2 Met. (Mass.) 176, 301, 806 Dow, Hetfield v. 3 Dutch. (N. J.) 440, 62, 63 Dow, Thomas v. 33 Me. 390, 296 Dow, Woolford v. 34 111. 424, 307 Dowbiggen v. Poume, 2 Younge & CoUyer (Exchequer) 462, 270 Dowell, Silvey v. 53 111. 260, 234 Dowling, Bennett v. 22 Texas, 660, 187 Downs, Erwin v. 15 New York, 375, 16 Downs, MuUer v. 94 United States, 444, 195 Downer v. Baxter 30 Vt. 467, 187 Downer v. Dana, 17 Vt. 518, 203 Downer, Dunham v. 31 Vt. 249, 27, 210 Downer, Sylvester v. 20 Vt. 355, 1.53 Downer, Sylvester v. 18 Vt. 32, 111 Downer, Sylvester v. 18 Vt. 32, 169 Downer, Woodstock Bank v. 27 Vt. 539, 106, 170, 175 Downey, Blake v. 51 Mo. 437, 176 Downey v. Hinchraan, 25 Ind. 453, 44 Downing, Rice v. 12 B. Mon. (Ky.) 44, 205 Dox V. Postmaster General, 1 Pe- ters, 318, 474 Doyal, State v. 12 La. An. 653, 426 Doyle V. White, 26 Me. 341, 62 Dozier, Bethune v. 10 6a. 285, 338, 504 Dozier v. Lea, 7 Humph. (Tenn.) 520, 18 Dozier, Lea v. 10 Humph. (Tenn.) 447, 317 Dozier v. Lewis, 27 Miss. 679, 261 Dubois, Grove v. 1 Term R. 112, 57 Dubuisson v. Folkes, 30 Miss. 432, 304, 805 Ducker v. Rapp, 9 Jones & Spen- cer (N. Y.) 235, 172, 375 Ducker v. Rapp, 67 New York, 464, 304, 308, 322 Dudley, Beebe v. 26 New Hamp. 249, 159, 173 Dudgeon, City National Bank' of Ottawa V. 65 111. 11, 275 TABLE OF OASES. Section Duerive, Ledou v. 10 La. An. 7, 232 Duff V. Barrett, 15 Grant's Ch. R. 682, 325 Duff V. Barrett 17 Grant's Ch. R. 187, 325 Dufau V. Wright, 25 Wend. 886, 90 Duffee, Henderson v. 5 New Hamp. 38, 252 Duffield, Goe v. 7 Moore, 252, 78 Dugan V. Sprague, 2 Ind. 600, 819 Duhamp v. Nicholson, 14 Martin (La.) 2 N. S. 672, 29 Duke of Marlborough, Kirby v. 2 Maule & Sel. 18, 135, 187 Dullens, Brunton v. 1 Foster & Fin. 450, 62 Dumas v. Patterson, 9 Ala. 484, 466 Dumont, Harbert ». 3 Ind. 346, 301, 309 Dumont v. Williamson, 18 Ohio St. 515, 16 Dunbar v. Brown, 4 McLean, 166, 168 Duncan, Cowan v. Meigs (Teun.) 470, 227 Duncan, Evans v. 1 Tyrw. 283, 38 Duncan v. Keiffer, 3 Bin. (Pa.) 126, 194 Duncan v. Lowndes, 3 Camp. 478, 10' Duncan, Mitchell v. 7 Florida, 13,, 12: Duncan v. State, 7 La. An. 377, 474 Duncan, Tinkum v. 1 Grant's Gas. (Pa.) 228, 84 Duncan, Wharton v. 83 Pa. St. 40, 370 Duncomb v. Tickridge, Aleyn, 94, 44 Dnndas v. Sterling, 4 Pa. St. 73, 361 Dunham v. Countryman, 66 Barb. (N. T.) 268, 318 Dunham's Exrs. Stothoff v. 4 Har- ris (N. J.) 181, 248, 252 Dunham v. Downer, 31 Vt. 249, 27, 210 Dunklee, Hamilton v. 1 New Hamp. 172, 428 Dunlap, Caston v. Richardson Eq. Gas. (So. Car.) 77, 208 Dunlap, Fear v. 1 Greene (loa.) 831, 147, 178 Dunlap V. Foster, 7 Ala. 734, 406 Dunlap V. Gordon, 10 La. An. 248, 102 Dunlap V. McNeU, 35 Ind. 316, 115 Dunlap, People v. 13 Johns. 437, 502 Section Dunlap V. Thome, 1 Richardson (So. Car.) 213, 50 Dunn, Kellogg v. 2 Met. (Ky.) 15, 153 Dunn, Leeds v. 10 New York, 469, 103 Dunn, Maclean v. 4 Bing. 722, 76 Dunn V. Slee, 1 Moore, 2 244 Dunn V. Smith, 12 Smedes & Mar. (Miss.) 602, 349 Dunn V. Sparks, 1 Ind. 397, 240 Dmin v. Sparks, 7 Ind. 490, 225 Dunn, Spooner v. 7 Ind. 81, 50 Dunn, State ». 11 La. An. 549, 348, 366, 367 Dunn, Supervisors of Washington Co. V. 27 Gratt. (Va.) 608, 444, 522'. Dunn V. Wade, 23 Mo. 207, 225, Dunn v. West, 5 B. Mon., (Ky.) 376, 46 Dunning v. Roberts, 35 Barb. (N. T.) 463, 75 Dunphy V. Whipple, 25 Mich. 10, 458 Dunsford, Eyre v. 1 East, 318, 58 DuphoCT, Baugher's Exrs. v. 9 Gill. (Md,)314, 291 Duijen, Aiken v. 2 Nott & McCord (So. Car.) 370, 54 Durham, Manrow v. 3 HOI, 584, 74 Durham v. Manrow, 2 New York, 533, 53 Durham, Tan Orden ». 85 Cal. 136, 284 Durkee, Titus v. 12 Up. Can. C. P. R. 367, 347 Durkee, Whitridge v. 2 Md. Ch. R. 442, 205 Dussol V. Bruguiere, 50 Cal. 456, 255 Dutchman v. Tooth, 7 Scott, 710, 70 Dutchman v. Tooth, 5 Bing. (N. C.) 577, 70 Duval, Croughton v. 3 Call (Va.) 69, 208 Duval V. Traskj 12 Mass. 154, 67 Drake, Edmondston v. 5 Petersj 624, 157, 346 Drake v. Flewellan, 38 Ala. 106, 44 Draie, Seaman v. 1 Caines' Rep. 9, 126 Drake v. Smythe, 44 Iowa, 410, 325 Drake, Taylor v. 4 Strobh. (So. Car.) 481, 60, 61 lii TABLE OF CASES. Section Drakely, Gist v. 2 GUI (Md.) 330, 147, 151 Drakeley v. Deforest, 3 Conn. 272, 49 Di-akeley, Monson v. 40 Ct. 552, 223 Draughan v. Bunting, 9 Ired. Law (Nor. Car.) 10, 47, 245 Draper v. Pattani, 2 Spears, (So. Car.) 292, 66 Draper v. Fob, 2 Spears (So. Car.) 292, 75 Draper v. Romeyn, 18 Barb. (N. Y.) 166, • 296 Draper v. Snow, 20 New York, 331, 73 Draper v. Weld, 13 Gray, 580, 303 Dressier, Fitzgerald v. 7 Com. B. (J. Scott) N. S. 374, 51, 54 Drew V. Lockett, 32 Beavan, 499, 276- Drinker, Stern v. 2 E. D. Smith, (N. Y.) 401, 50 DriscoU V. Blake, 9 Irish Ch. R. 356, 29 Driskill v. Board of Commissioners, 53 Ind. S32, 505 Driskell V. Mateer, 31 Mo. 325, 212 Drummond, Boydell v. 11 East, 142, 66 Drummond v. Prestmam, 12 Whea- ton, 515, 96, 97, 520 Draett's Admr. Peek v. 9 Dana (Ky.) 486, 366 Druly, State v. 3 Ind. 431, 484 Drury v. Fay, 14 Pick. 326, 536 Drury v. Fay, 14 Pick. 26, 213 Drury, Paine v. 19 Pick. 400, 109 Drury, State v. 36 Mo. 281, 461 Dry V. Davy, 2 Perry, & Dav. 249, 98 Dwarris, Wood v. 11 Exch. 498, 352 Dwinnell, Keith », 38 Vt. 286, 134 Dwight, Doolittle v. 2 Met. (Mass.) 561, 181, 237 Dwight, Lewis v. 10 Ct. 95, 93, 132 Dwight V. Linton, 3 Robinson (La.) 57, 153. 352 Dwight V. Pomeroy, 17 Mass. 308, 352 Dwight V. Williams, 4 McLean, 581, 84 D'Wolf V. Rabaud, 1 Peters, 476, 46, 60, 72 D'Wolf, Quintard ». 34 Barb. (N. Y.) 97, 48 Sectioit Dye, Cockrill v. 33 Mo. 365, 513 Dye V. Dye, 21 Ohio St. 86, 392 Dye V. Mann, 10 Mich. 291, 179 Dyer, Cole v. 1 Cromp. & Jer. 461, 68,71 Dyer v. Gibson, 16 Wis. 508, 53 Dyer v. Graves, 37 Vt. 369, 38 Dyer, MiUer v. 1 Duvall (B:y.)263, 379, 382 Dyer, Wright v. 48 Mo. 525, 172 Dykes, Pilgrim «. 24 Texas, 383, 325 Dykes v. Townsend, 24 New York, 57, 76 Eagles V. Kern, 5 Wharton (Pa.) 144, 530 Bales V. Fraser, 6 Man. & Gr. 755, 27 Earle, Deblois v. 7 Rhode Is. 26, 90 Earle, Evans v. 1 Hurl. & Gor. 1, 146 Early, CecU v. 10 Gratt. (Va.) 198, 29,444 Earl of Winchelsea, Deering v. 2 Bos. & Pul. 270, 221 Earl of Winchelsea, Deering v. 1 Cox, 318, 221 Bason e. Petway, 1 Dev. & Bat. Law (Nor. Car.) 44, 82 Easter v. White, 12 Ohio St. 219, 47 Eastern Union Railway Co. v. Cochrane, 9 Wels. Hurl. & Gor. 197, 101 East India Company v. Boddam, 9 . Vesey, 464, 118 East India Company, Law v. 4 Ve- sey, 824, 79, 371 East River Bank v. Rogers, 7 Bosw. (N. Y.) 493, , 170 Eastman v. Bennett, 6 Wis. 232, 70 Eastman v. Foster, 8 Met. (Mass.) 19, 282 Eastman, Joslyn v. 46 Vt. 258, 295 Eastman v. Norton v. 4 Greenl. (Me.) 521, 163, 319 Eastman v. Plumer, 32 New Hamp. 238, 289 Eastwood V. Kenyon, 3 Perry & Dav. 276, 58, 77 TABLE OF CASES. liii Section Eastwood V. KenyoD, 11 Adol. & EU. 438, 9, 58 Eaton V. Benefield, 2 Blackf. (Ind.) 52, 494 Es.ton V. Lambert, 1 Nebraska, 339, 182 Eaton V. Hasty, 6 Nebraska, 419, 260 Eaton V. Mayo, 118 Mass. 141. 87 EberHardt v. Wood, 2 Tenn. Ch. R. (Cooper) 488, 240 Ecker v. McAllister, 45 Md. 290, 77 Eckert, Beckley v. 3 Pa. St. 292, 36 Eckford's Exrs. Mann v. 15 Wend. 502, 170 Eckford's Exrs. United States v. 1 Howard (U.S.) 250, 294 Eddy V. Heath's Garnishees, 31 Mo. 141, . 478 Eddy V. Roberts, 17 111. 605, 48 Eddy V. Stantons, 21 Wend. 255, 84 Eddy V. Sturgeon, 15 Mo. 198, 293 Eddy V. Traver, 6 Paige Ch. E. 521, 262, 270 Edelen v. Gough, 5 Gill, 103, 68 Eder, Heynemann v. 17 Cal. 433, 407 Edge V. Frost, 4 Dow. & Ry. 243, 63 Edgerly v. Emerson, 23 New Hamp. 555, 264 Edgerton, Clay i: 19 Ohio St. 549, 170 Edgei-ton. Yale v. 14 Minn. 194, 9 Edmonds, Goring ». 3 Moore & Payne, 259, 171 Edmonds, Goring v. 6 Bing. 94, 171 Edraondston v. Drake, 5 Peters, 624, 157, 346 Edmunds, Price v. 5 Man. & Ryl. 287, 321 Edmunds, Price v. 10 Bam. & Cress. 578, 321 Edney, Reynolds v. 8 Jones Law (Nor. Car.) 406, 173 Edson, Fletcher v. 8 Vt. 294, 190 Edwards, Bailey v. 4 Best & Smith, 761, • 328 Edwards, Bruce v. 1 Stew. '(Ala.) 11, 17, 206 Edwards v. Coleman, 6 T. B. Mon. (Ky.) 567, 296, 299 Edwards, Cowell v. 2 Bos. & Pull. 268, 252 Seotiok Edwards, Frank ». 8 Wels. Hurl. & Gor. 214, 341 Edwards v. Gunn, 3 Ct. 316, 426 Edwards v. Jevons, 8 Man. Gr. & Scott, 436, 70, 72 Edwards v. EeUy, 6 Maule & S. 204, 49, 51 Edwards, People v. 9 Cal. 286, 442 Edwards, Skip v. 9 Md. 438, 346 Edwards, State Bank v. 20 Ala. 512, .378 Edwards, Wilson v. 6 Lansing (N. T.)134, 102 Egbert, Harrinaan v. 36 Iowa, 270, 504 Bge V. Bainitz, 8 Pa. St. 304, 84 Egerton v. Alley, 6 Ired. Eq. (Nor. Car.) 188, 204 Eggleston, Paw Paw v. 25 Mich. 36, 268 Eichelberger, Markell », 12 Md. 78, 188, 193 Eichelberger v. Morris, 6 Watts (Pa.) 42, 124 Bilbert v. Finkbeiner, 68 Pa. St. 243, 149 Bisenbeis, Comforts. 11 Pa. St. 13, 189 Bkel, Snevily v. 1 Watts Serg. (Pa.) 203, 164 Ela, New Hampshire Savings Bank V. 11 New Hamp. 335, 299, 305 Ela, Webster v. 5 New Hamp. 540, 67 Elam V. Heirs of Barr, 14 La. An. 682, 13 Elam V. Rawson, 21 Ga. 139, 272 Elbert v. Jacoby, 8 Bush (Ky.) 542, 463 Elder ». Commonwealth, 55 Pa. St. 485, 278 Elder v. WarEeld, 7 Harr. & Johns (Md.) 391, 62, 63 BUenwood D. Fults, 63 Barb. 321, 9 Ellett r. Britton, 10 Tex. 208, 68 Elfp V. Gadsden, 2 Rich. (So. Car.) .373, 66 Bliff, GaiTatt v. 4 Humph. (Tenn.) 323, 615 Blkin V. People, 3 Scam. (111.) 207, 458 Elkins, Hatch v. 65 New York, 489, 618 liT TABLE OF CASES. Section Elkins V. Heart, Ktzg. 202, 56 Elledge, Carman v. 40 Iowa, 409, 164 Ellery, Gould v. 39 Barb. (N. Y.) 163, 33 Ellis V. Bibb, 2 Stew. (Ala.) 63, 296, 300 ElHa V. Brown, 6 Barb. (N. Y.) 282, 150 Ellis V. Deadman, 4 Bibb (Ky.) 462, 66 Ellis, Embree v. 2 Johns. 119, 186 Ellis v. Emmanuel, Law Rep. 1 Exch. Div. 157, 219 Ellis, Fordyce v. 29 Cal. 96, 325 Ellis V. Hull, 23 Cal. 160, 404 Ellis V. MoCormick, 1 Hilton (N. Y.) 313, 339 Elliott V. Boaz, 13 Ala. 535, 361 Elliott V. Giese, 7 Harr. & Johns. 457, 68 Elliott V. Gray, 4 Stew. & Port. (Ala.) 168, 405 ElHott V. Harris, 9 Bush (Ky.)237, 213 Elliott V. Hayes, 8 Gray, 164, 110 Elliott, Perkins v. 8 C. E. Green, 526, 4 Ellicott V. The Levy Court, 1 Harr. & Johns. (Md.) 359, 447 Ellison V. Jackson, 12 Cal. 542, , 68 Ellison, WUtmer v. 72 111. 301, 309, 327 EUsbree, Doty v. 11 Kansas, 209, 452 Elwood V. Deifendorf, 5 Barb. (N. Y.) 398, 181 Ellsworth, Virden v. 15 Ind. 144, 115, 172 Elmendorph v. Tappen, 5 Johns 176, 109 Elmore, Day ».' 4 Wis. 190, 70,82,84 Elmore, Sailly v. 2 Paige Ch. R. 497, 209. 296 Elting V. Vanderlyn, 4 Johns. 237, 8 Ely, Manhattan Gas Light Co. v. 39 Barb. (N. Y.) 174, 98 Ely, Thrasher v. 2 Smedes & ■ Marsh. (Miss.) 139, 170 Ely, Ward v. 1 Dev. Law (Nor. Car.) 872, 88 Emanuel Cullum v. 1 Ala. 23, 261 Embree v. Ellis, 2 Johns. 119, 186 Section Emerson, Davis v. 17 Me. 64, 247 Emerson, Edgerly v. 23 New Hamp. 555, 264 Emerson v. Slater, 22 Howard (H. S.) 28, 46, 56 Emery v. Clarke, 2 J. Scott (N. S.) 582, 189 Emerv, Cutter v. 37 New Hamp. 5671! 46, 229 Emery v. Richardson, ■ei Me. 99, 303 Emanuel, Ellis v. Law Rep. 1 Exch. Div. 157, 219 Emmerson v. Heelis, 2 Taunt. 38, 76 Emmerson, Locknane ». 11 Bush (Ky.) 69, 331 Emmottt). Kearns, 5 Bing. (N. C.) 559, . 70, 73 Emmons v. Meeker, 55 Ind. 321, 3.33 Eneas v. Hoops, 10 Jones & Spen. (N. Y.) 517, 170, 330 Enders!). Brune, 4 Randolph (Va.) 438, 260 Endicott v. Penny, 14 Sm. & Mar. (Miss.) 144, 76 England, Martin v. 5 Yerg. (Tenn.) 313, 60 England ii. McKanrey, 4 Sneed (Tenn.) 75, • 505 English V. Brown, 7 Bush (Ky.) 138, 508 Enicks v. Powell, 2 Strobh. Eq. (So. Car.) 196, 462, 502 Ennis v. Crump, 6 Texas, 85, 503, 510 Ennis, Justices v. 5 Ga. 569, 442 Ennis v. Waller, 3 Blackt". (Ind.) 472, 76 Enos V. Aylesworth, 8 Ohio St. 322, 437 Ensworth, Cuyler v. 6 Paige Ch. R. 22, 243 Epperson, Taul v. 38 Texas. 492, 268 Erie Bank v. Gibson, 1 Watts (Pa.) 143, 207 Erie R. R. Co. Aruot v. 67 New York, 315, 89 Erie R. R. Co. Amot v. 5 Hun 608, 3 Erwin ». Downs, 15 New York, 375, 16 Erwin v. Greene, 5 Robinson (La ) 70. 105 TABLE OF OASES. Iv Section Escoffie, New Orleans Canal and Banking Co. v. 2 La. An. 830, 82, 391 Esselman, Gilliam v. 5 Sneed, tTenn.) 86, 261" Estate of Dorwin, Peake v. 25 Vt. 28, , 311 Estate of Leavenworth, Bank v. 28 Vt. 209, 319 Estudillo, Mulford v. 23 Cal. 94, 378 Etcherson, Sanders v. 36 Ga. 404, 165 Evans v. Bell, 45 Texas, 553, 84 Evans v. Bicknell, 6 Vesey, Jr. 174, 59 Evans v. Bremridge, 8 De Gex, Maon. & Gor. 100, 349 Evans v. Bremridge, 2 Kay & Johns. 174, 349 Evans, Briggs v. 1 E. D. Smith (N. Y.) 192, 63 Evans V. Commonwealth, 8 Watts (Pa.) 398, 530 Evans, Cooper v. Law Rep. 4 Eq. Cas. 45, 210, 350 Evans, Corbet v. 25 Pa. St. 310, 110 Evans, Cutter v. 115 Mass. 27, 408 Evans v. Duncan, 1 Tyrw. 283, 38 Evans v. Earle, 1 Hurl. & Gor. 1, 146 Evans v. Evans, 16 Ala. 465, 232 Evans, Farmers' and Mechanics' Bank v. 4 Barb. (N. Y.) 487, 103 Evans v. Keeland, 9 Ala. 42, 201 Evans, Kennedy v. 31 111. 258, 17, 309 Evans, Leadley v. 9 Moore, 102, 140 Evans, M. & M. Bank Wheeling «. 9 West Va. 373, 296, 333 Evans, Norris v. 2 B. Mon. (Ky.) 84, 271 Evans, People v. 29 Cal. 429, 461 Evans v. Raper, 74 Nor. Car. 639, 121 Evans, Reed v. 17 Ohio, 128, 68, 170 Evans, Smith v. Wils. 313, 75 Evans, State Bank v. 3 J. S. Green (N. J.) 155, 357 Evans, Wilkinson v. Law Rep. 1 C. P. 407, 66 Evans v. Whyle, 5 Bing. 485, 102 Evans t>. Whyle, 3 Moore & Payne, 130, 102 Evans, Vaughan v. 1 Hill Eq. (So. Car.) 414, 467 Section Eve, Burgess v. Law Rep. 13 Eq. 450, 134 Evers v. Sager, 28 Mich. 47, 397 Everett, Eyre v. 2 Russell, 881, 200 Everett, Polak v. Law Rep. 1 Queen's B. Div. 669, 373 Everett, Townsend v. 4 Ala. 607, 466, 522 Everly v. Rice, 20 Pa. St. 297, 372 Evoy V. Tewksbiiry, 5 Cal. 285, 68 Bwbank, Rowlett v. 1 Bush (Ky.) 477, 8 Ewing's Admrs. Uixon ». 3 Ohio, 280, 378 Ewing, Williams v. 31 Ark. 229, 248 Ewins V. Calhoun, 7 Vt. 79, 59 Exall V. Partridge, 8 Dum. &.East, 808, 178 Executors of Baker u. Marshall, 16 Vt. 522, 381 Executor of Heriot, Taylor v. 4 Des. Eq. (So. Car.) 227, 195 Executor of Richard Dorman v. 1 Florida, 281, 68 Exr. of Dennis v. Rider, 2 Mo- Lean, 451, 208 Exrs. of McCall v. Admr. of Evans, 2 Brevard (So. Car.) 3, 209 Exr. of Robinson, Commissioner v. 1 Bailey Law (So. Car.) 151, 359 Exrs. of Riggins v. Brown, 12 Ga. 271, 299 Exrs. of Riggins, Brown i>. 3 Kelly (Ga.)405, ' 378,382 Exrs. of White v. White, 30 Vt. 338, 180 Exeter- Bank v. Rogers. 7 New Hamp. 21, 344 Eyer, Northumberland Bank v. 58 Pa. St. 97, 33 Eyles, Colman v. 2 Starkie, 62, 62 Eyre v. Demsford, 1 East, 318, 58 Byre v. Everett, 2 Russell, 881, 200 Eyre v. Hollier, Lloyd & Goold (Temp. Plunket), 250, 25, 338 Eyre, Silk v. Irish Rep. 9 Eq. 393, 280 F. & M. Bank of Lexington v. Cosby, 4 J. J. Marsh. (Ky.) 866, 328 Ivi TABLE OF CASES. Section Faber, Steele v. 37 Mo. 71, 235 Fackney, Jacques v. 64 111. 87, 275 Fagan, Latham v. 6 Jones Law, (Nor. Car.) 62, 459 Fagan, Sharp v. 3 Sneed (Tenn.) 541, 306 Fagon V. Jacocks, 4 Dev. Law, (Nor. Car.) 268, 283 Failor, RusseU v. 1 Ohio St. 327, 282 Fair v. Pengelly, 34 Up. Can. Q. B. R. 611, 296 Fairfax, Commonwealth v. 4 Hen. &Munf.(Va.)208, 139 Fairhaven Bank, Wilcox v. 7 Allen, 270. 266 Fairlie v. Denton, 8 Bam. & Cress. 395, 52 Fairlie v. Denton, 2 Man. & Ry. 353, 52 Fairlie v. Lawson, 5 Cowen, 424, 93 Falconer, Smith v. 11 Hun (N. T.) 481, ' 404 Famhro, Chipman v. 16 Ark. 291, 527 Farmer. Shelton v. 9 Bush (Ky.) 814, 241 Farmer, Bramwell v. 1 Taunton, 427, 439 Farmer, Hall v. 5 Denio, 484, 74 Farmer, State ». 21 Mo. 160, 484 Farmer v. Stewart, 2 New. Hamp. 97, 214 Farmers' Bank v. Horsey, 1 Har- rington (Del.) 514, 325 Farmers' Bank of Canton v. Rey- nolds, 18 Ohio, 85, 390 Farmers' & Drovers' Bank v. Sher- ley, 12 Bush (Ky.) 304, 265 Farmers' National Bank, Uhler v. 64 Pa. St. 406, 9 Farmers' and Mechanics' Bank v. Evans, 4 Barb. (N. T.) 487, 103 Farmers' & Mechanics' Bank v. Hathaway, 36 Vt. 539, 361 Farmers' & Mechanics' Bank, Hic- kok V. 35 Vt. 476, 208, 352 Farmers' & Mechanics' Bank «. Humphrey, 86 Vt. 554, 95 Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504, 184, 173, 813, 346 Section Farmers' & Mechanics' Bank v. Kingsley, 2 Douglass (Mich.) 379, 121 Farmers' & Mechanics' Bank, Kra- mer V. 15 Ohio, 258, 188, 193 Farmers' & Mechanics' Bank v. Polk, 1 Delaware, Ch. B. 167, 444 Farmers' & Traders' Bank v. Har- rison, 57 Mo. 503, 310 Farmers' & Traders' Bank v. Lu- cas, 26 Ohio St. 385, 296, 354 Farrar, Towns v. 2 Hawks (Nor. Car.) 163, 85 Farrar v. United States, 5 Peters, 373, 449 Farrell, Davidson v. 8 Minn. 258, 514 Farrell, McKensie v. 4 Bosw. (N. Y.) 192, 68 Paria, Peckham v. 3 Douglass, 13, 61 Farebrother v. Wodenhouse, 23 Beavan, 18, 279 Farebrother v. Simmons, 5 Barn. & Aid. 333, 76 Farrington v. Gallaway, 10 Ohio, 543, 17 Farris, Linn County v. 52 Mo. 75, 358 Farris v. Martin, 10 Humph. (Tenn.) 495, 75 Farnsworth v. Clark, 44 Barb. 601, 9 Farrow v. Respess, 11 Ired. Law (Nor. Car.) 170, 84 Parwell, Hopkins v. 32 New Hamp. 425, 289 Farwell v. Lowther, 18 111. 252, 67 Farwell v. Meyer, 35 111. 40, 323 Fawoett, Harriss v. Law Rep. 8 Chan. Appl. Gas. 866, 114 Fawcett, Harriss v. Law Rep. 15 Eq. Cas. 311, 114 Fawcett». Kimmey, 33Ala. 261, 275 Faxon, Marion v. 20 Conn. 486, 60 Pay, Drury v. 14 Pick. 26, 213 Fay, Drury v. 14 Pick. 326, 536 Fear v. Dunlap, 1 Greene (Iowa) 331, 147, 173 Feamster v. Withrow, 9 West Va. 296, 182 Featherston, Scott v. 5 La. An. 306, 261 Felch V. Lee, 15 Wis. 265, 292 TABLE OF CASES. Ivii Section Fellows, Currier v. 27 New Hamp. 866, 233, 238 Fellows V. Prentiss, 3 Denio, 512, 135, 161 Fellows V. Prentiss, 9 Denio, 512, 316 Fennell v. MoGuire, 21 Up. Can. C. P. R. 134,' 113, 131 Fensler v. Prather, 43 Ind. 119, 504 Fentum v. Pocock, 1 Marshall, 14, 156 Fentum v. Pocock, 5 Taunt. 192, 156 Fenwick, Winston v. 4 Stew. & Port. (Ala.) 269, 80 Fergusson, Ghiselin v. 4 Harris & Johns. (Md.) 522, 276 Fergusson, Haslock v. 7 Ad. & EU. 86, 59 Ferguson v. Childress, 9 Humph. (Tenn.) 382, 825 Ferguson, Harris «. 2 Bailey Law (So. Car.) 397, 222 Ferguson v. Hirsch, 54 Ind. 837, 487 Ferguson, Laughlin v. 6 Dana (Ky.) Ill, 405 Ferguson, Leake v. 2 Gratt. (Va.) 419, 268 Ferguson v. State Bank, 8 Ark. (3 Eng.) 416. 296 Ferguson v. Turner, 7 Mo. 497, 382 Feruald v. Dawley, 26 Me. 470, 226 Fernald, Sawyer v. 59 Me. 500, 9 Ferrell v. Hunter, 21 Mo. 436, 354 Ferrell.i). Maxwell, 28 Ohio St. 383, 46 Ferrie, Greene's Exrs. v. 1 Dessau- sure (So. Car.) 164, 280 Perry v. Burchard, 21 Ct. 597, 121 Fessenden v. Mussey, 11 Cush. 127, 75 Fetrow v. Wiseman, 40 Ind. 148, 3, 892 Fett, McDonald v. 49 Cal. 354, 410, 428 Fitz, Jones v. 5 New Hamp. 444, 231 Few, Kelly v. 18 Ohio, 441, 153 Fewlass v. Abbott, 28 Mich. 270, 108 Field V. Cutler, 4 Lans. (N. Y.) 195, 206 Field, Harrison v. 2 Washington (Va.) 136, 80, 117 Field, Hutson v. 6 Wis. 407, 73 Field u. Eawlings, 1 Gilm. (111.) 581, 111 Section Field, Thomer v. 1 Bulstr. 1 ^0, 9 Fielden v. Lahens, 6 Blatchford, 524, 470 Fielding v. Waterhouse', 8 Jones & Spencer (N. Y.) 424, 235, 260, 370 Filene, Rice v. 6 Allen, 230, 103 Files V. McLeod, 14 Ala. 611, 54 Findlay's Exrs. v. United States, 2 McLean, 44, 27 Findley, Campbell v. 3 Humph. 330, 68 Findley, Robertson v. 81 Mo. 384, 7 Findley, State v. 10 Ohio, 51, 443, 445 Findley v. State Bank, 6 Ala. 244, 354 Finley v. King, 1 Head (Tenn.) 123, 878 Finley, Miller v. 26 Mich. 249, 332 Finch, Newsam v. 25 Bai-b. (N.Y.) 175, 306 Finch, Smith v. 2 Scam. (111.) 821, 9, 53, 158 Pink V. MahafFy, 8 Watts (Pa.) 384, 267 Finks, Wolf ». 1 Pa. St. 435, 299 Finden, Kemp v. 12 Mees. & Wels. 421, 247, 253 Finkbeiner, EUbert v. 68 Pa. St. 243, 149 Finney's Admrs. ». Commonwealth, 1 Pen. & Watts (Pa.) 240, 370 Finney, Ford v. 35 Ga. 258, 52 Finney, Pickens v. 12 Smedes & ' Mar. (Miss.) 468, 388 Finn v. Stratton, 5 J. J. Marsh. (Ky.) 364, 382 Finsley v. Oliver's Admr. 5 Munf. (Va.) 419, 273 Firemen's Ins. Co. v. Cross, 4 Rob. (La.) 508, 4 Firemen's Ins. Co. v. McMillan, 29 Ala. 147, 340, 524 Fii-emen's Ins. Co. Perrine v. 22 Ala. 575, 374 Firman v. Blood, 2 Kansas, 496, 147 First Associated Reformed Presby- terian Church, Shaw v. 89 Pa. St. 226, 316 First Congregational Society v. Snow, 1 Cush. 510, 282. Iviii TABLE OP OASES. , Section First National Bank of Fort Dodge V. Breese, 39 Iowa, 640, 92 First National Bank of Dubuque v. Carpenter, 41 Iowa, 518, 174 First National Bank of Chicago, Nelson v. 48 lU. 36, 53 First National Bank, Myers v. 78 111. 257, 309 First National Bank v. Smith, 25 Iowa, 210, 513 First National Bank, Monmouth v. Whitman, 66 111. 331, 300, 352 First National Bank of Marshall, Inkster v. 30 Mich. 143, 208 First National Bank of Marshall- town, Middleton v. 40 Iowa, 29, 421 Fisher, Cooper v. 7 J. J. Marsh. (Ky.) 396, 318 Fisher v. Cutter, 20 Mo. 206, 102 Fisher, Keane v. 10 La. An. 261, 91 Fishhurn v. Jones, 37 Ind. 119, 848 FL«h, Reed v. 59 Me. 358, 137 Fish V. Thomas, 5 Gray, 45, 50 Fisk, Wood V. 63 New York. 245, 117 Fiske, Bachelder v. 17 Mass. 464, 238, 248 Fiske ». McGregory, 34NewHamp. 414, 58 Fitch, Crim v. 53 Ind. 214, 58 Fitch V. Gardenier, 2 Albott's Rep. Omitted Cas. 153, 60 Fitch, Sewall v. 8 Cowen, 215, 76 Fitzge'rald v. Dressier, 7 Com. B. (J. Scott) N. S. 374, 51, 54 Fithian v. Corwin, 17 Ohio St. 118, 297 Fitzhugh, Andre v. 18 Mich. 93, 407 Flanagan, Adams v. 86 Vt. 400, 226, 230 Flanagan v. Post, 45 Vt. 246, 364 Flagler, Sanhom v. 9 Allen, 494, 75 Fleece v. State, 25 Ind. 384; 439 Flewellan, Drake v. 33 Ala. 106, 44 Fletcher, Benton v. 31 Vt. 418, 84,154 Fletcher v. Edson 8 Vt. 294, 190 Fletcher ». Gamble, 3 Ala. 335, 321, 325 Fletcher v. Grover, 11 New Hamp. 368, 251 Section Fletcher v. Jackson, 23 Vt. 581, 245, 246, 247, 255 Fletcher v. Leight, 4 Bush. (Ky.) 303, 357 Fletcher, Skillett v. Law Rep. 1 Com. PI. 217, 346 Fletcher Skillett v. Law Rep. 2 Com. PI. 469, 346 Fleming, Adcock v. 2 Dev. & Batt. Law (Nor. Car.) 225, 53, 168 Fleming -b. Beaver, 2 Rawle (Pa.) 128, 270 Fleming, Inhabitants of Wendell V. 8 Gray, 613,, 445 Fleming, Jones v. 15 La. An. 522, 17 Fleming, State v. 46 Ind. 206, 492 Flinn, Wright v. 33 Iowa, 159, 94 Flint V. Day, 9 Vt. 345, 151 Fhnt, Johnson v. 34 Ala. 673, 400 Phnt, Municipality of Whitby v. 9 Up. Can. C. P. R. 449, 445, 447, 472 Flint. Trustee of Free Schools v. 13 Met. (Mass.) 539, 54 Flippen, Reid v. 47 Ga. 273, 199, 296 Florance v. Richardson, 2 La. An. 668, 460 Flores i'. Howth, 5 Texas, 329, 141 Florida R. R. Co., Voss v. 50 New York, 369, 361 Floyd V. Harrison, 4 Bibb (Ky.) 76, 55 Floyd, HoUingsworth v. 2 Har. & Gill (Md.} 87, 266 Fluck V. Hager, 51 Pa. St. 459, 288 Fluker v. Henry's Admr. 27 Ala. 403, 26 Flynn v. Mudd, 27 111. 823, 17, 305 Plynn's Exr. Brandenburg ®. 12 B. Mon. (Ky.) 897, 227 Fogleman, ShoflFner v. Winston Law & Eq. (Nor. Car.) 12, 276 Foljambe, Ogilvie v. 8 Merivale, 53, 75 Foley, Haven v. 18 Mo. 186, 282 Folkes, Dubuissou v. 80 Miss. 482, 304, 305 FoUmer v. Dale, 9 Pa. St. 83, 297 Folsom, Moore v. 14 Minn. 340, 149 Fooks, Strange v. 4 Giffard, 408, 386 Fontaine, Lee v. 10 Ala. 755, 49 Foot, Wilson V. 11 Met. 285, 17, 20 TABLE OF CASES. lix Section Foote V. Brown, 2 McLean, 896, 168 Forbes, Brownelow v. 2 Johns. 101, 426 Forbes, Coleman v. 22 Pa, St. 156, 120 Force V. Craig, 2 Halstead (N. J.) 272, 296 Fordu. Beard, 31Mo. 459, 296 Ford V. Clougb, 8 Greenl. (Me.) 334, 445 Ford V. Finney, 85 (Ja. 258, 52 Ford, Guion v. 12 Robinson, (La.) 128, 438 Ford Hays v. 55 Ind. 52, 240 Ford V. Eeith, 1 Mass. 139, 178, 185 Ford V. Stobridge, Nelson, 24, 176 Fordyoe, Bank v. 9 Pa. St. 275, 84, 378 Fordyce v. Ellis, 29 Cal. 96, 325 Foreman, Deardorff «. 24 Ind. 481, 354 Forest v. Shores, 11 La. (Curry,) 416, , 176 Forest v. Stewart, 14 Ohio St. 246, 85, 170 Forney, Kendrick v. 22 Gi-att. (Va.) 748, 182, 273 Forney, Swope v. 17 Ind. 385, 30, 350 Forrester, Stirling v. 3 Bligh, 575, 388 Forstal), Union Bank v. 6 La. (Cur- ry) 211, £68 Fort, House v. 4 Blaokf. (Ind.) 298, ■ 282 Forward v. Marsh, 18 Ala. 645, 483 Fowler v. Alexander, 1 Heiskell (Tenn.)425, , 18 Fowler v. Brooks, 13 New Hamp. 240, ' '300, 307 Fowler v. Clearwater, 35 Barb. (N. T.) 148, 53 Fowler, Hall v. 6 Hill, 630, 409 Fowler, Newell v. 23 Barb. (N. T.) 628, 82 Fowler, Teague v. 56 Ind. 569, 49 Foss, Cleaves t: 4 Greenl. (Me.) 1, 76 Poss V. City of Chicago, 34 lU. 488, 370 Foster v. Barney, 3 Vt. 60, 83, 885 Foster, Cage v. 5 Yerg. (Tenn.) 261, 257 Foster v. Charles, 6 Bing. 396, 59 Poster, Crawford J). 6 Ga. 202, 349, 586 Section Foster, Dunlap v. 7 Ala. 704, 406 Poster, Eastman v. 8 Met. (Mass.) 19, 282 Poster V. Hale, 3 Vesey Jr. 696, . 66 Poster V. Johnson, 5 Vt. 60, 253 Poster, Strong v. 17 Com. Bench. (8 J. Scott) 201, 292, 296 Poster V. ToUeson, 13 Rich. Law & Eq. (So. Car.) 81, 172 Poster V. Trustees of Athenaeum, 3 Ala. 302, 273 Foster, Vail «. 4 New York, 312, 282 Fountain, Browning v. 1 DuvaU (Ky.) 13, 94 Fowle V. Freeman, 9 Vesey, 351, 75 FoxaU, Phillips v. Law Rep. 7 Queen's B. 666, 868 Poxcroft V. Nevens, 4 Greenl. (Me.) 72, 447 Poy, Conrad v. 68 Pa. St. 881, 207 Pox, Hess V. 10 Wend. 486, 38 Pox, Knight v. Morris (Iowa) 305, 113 Pox V. Meacham, 6 Nebraska, 530, 480 Pox V. Parker, 44 Barb. (N. Y.) 541, 318 Francis, Godwin v. Law Rep. 5 Com. P. 295, 75 Francis, Shane ». 30 Ind. 92, 487 Francisco, Buford v. 3 Dana (Ky.) 68, 195 Frank v. Edwards, 8 Wels. Hurl. & Gor. 214, 341 Franklin Mills, Brewer v. 42 New Hamp, 292, 264 Franklin Bank v. Cooper, 89 Me. 542, 867 Franklin Bank v. Cooper, 86 Me. 179, 12, 14, 865 Franklin v. Hammond, 45 Pa. St. 507. 446 Franklin Bank v. Stevens, 39 Me. 5.32, 858, 365 Franklin, Tallman v. 14 New York, 584, 66 Franklin's Admr. v. Depriest, 13 Gratt. (Va.) 257, 30 Praser, Bales v. 6 Man. & Gr. 755, 27 Fraser v. McConnell, 23 Ga. 368, 17. 25 TABLE OF OASES. Section Fralick, Willard v. 31 Mich. 431, 515 Frantz, Warfel v. 76 Pa. St. 88, 357 Frazee, Dixon v. E. D. Smith (N. T.)32, 62, 64 Freauer v. Tingling, 87 Md. 491, 386 Frederick v. Moore, 13 B. Mon. (Ky.) 470, 383 Frederick, Ehoads v. 8 Watts (Pa.) 448, 336 Fredericks, State v. 8 Iowa, 553, 13 Freeland v. Compton, 30 Miss. 424, 298 Freer, Bellingham v. 1 Moore's Priv. Con. Cas. 333, 316 Freehold National Banking Co., Brick ads. 8 Vroom (N. J.) 307, 384, 385 Freeholders of Warren e. Wilson, 1 Harrison (N. J.) 110, 466 Freeport v. Bartol, 3 Greenl. (Me.) 340, 66 Freeman, Bailey v. 4 Johns. 280, 6 Freeman, Bailey v. 11 Johns. 221, 73 Freeman, Fowle v. 9 Vesey, 351, 75 Freeman v. Freeman, 2 Bulst. 269, 7 Freeman v. Mebane, 2 Jones Eq. (Nor. Car.) 44, 280 Freeman, Pasley v. 3 Term R. 51, 59 Freeman, Stedman v. 15 Ind. 86, 261 Freeman's Bank v. Rollins, 13 Me. 202, 305 Freeborn, Belloni v. 63 New York, 383, 78, 190 French v. French, 2 Man. & Gr. 644, . 6-9 French v. Marsh, 29 Wis. 649, 82 French, Pigon v. 1 Washington (U. S.) 278, 176 French, Sweetser v. 2 Cush. 309, 10, 354 French v. Thompson, 6 Vt. 54, 51 French, Tuckerman v. 7 Greenl. (Me.) 115, 157 Freudenstein v. McNeir, 81 111. 208, 487 Fretz, Myers v. 4 Pa. St. 344, 494 Frey v. Hebenstreit, 1 Robinson (La.) 561, 429 Freyer, Leffingwell v. 21 Wis 392, 21, 117 Friokee ». Downer, 35 Mich. 151, 319 Section Fridge v. State, 3 Gill & Johns. (Md.) 103, 29 Frink, Peck v. 10 Iowa, 193, 83 Frinden, Kempi>. 12 Mees. & Wels. 421, 252 Frisch v. Miller, 5 Pa. St. 310, 348 Frith, State v. 14 La. (Curry) 191, 431, 485 Frost, Edge v. 4 Dow. & Ry. 243, 63 Frost V. Rucker, 4 Humph. (Tenn.) 57, 515 Prow, Jacobs & Co.'s Estate, 73 Pa. St. 459, 262 Frye v. Barker, 4 Pick. 382, 120, 208 Fryer, McClurg v. 15 Pa. St. 293, 84 Fugate, Nash v. 24Gratt, (Va.) 202, 355 Pugate, Admx.'Pitts ». 41 Mo. 405, 527 Fuquay, Johnson v. 1 Dana (Ky.) 514, 501 Pulton V. Matthews, 15 Johns. 433, 296 Fulmer v. Seitz, 68 Pa. St. 287, 331 FuUam v. Adams, 37 Vt. 391, 50, 55 PuUamp. Valentine, 11 Pick. 156, 425 Fuller, Athol Machine Co. v. 107 Mass. 437, 4 Fuller V. Calkins. 22 Iowa, 301, 452, 478 Fuller V. Davis, 1 Gray, 612, 431 Fuller, Goodspeed v. 46 Me. 141, 46 Fuller, Gould v. 18 Me. 864, 237 Fuller, Kaighn v. 1 McCarter (N. J.) 419, 328 Puller V. Loring, 42 Me. 481, 288 Fuller V. Milford, 2 McLean, 74, 296 Fuller V. Scott, 8 Kansas, 25, 8, 10, 74, 147, 173 Puller, Stark v. 42 Pa. St. 320, 216 Fullerton, Galbraith v. 53 111. 126, 309 FuUertou v. Sturges, 4 Ohio St. 529, 356 Pults, Ellenwood v. 63 Barb. 321, 9 Furber v. Bassett, 2 Duvall (Ky.) 433, 299 Furbor, Warrington v. 8 East, 242, 178, 180 Furgerson, McLewis v. 5 The Re- porter, 330, 283 Furnold v. The Bank of the State of Mo. 44 Mo. 336. 281 TABLE OT' CASES. Ixi Section Gabbert's Admr. Commonwealth V. 5 Bush (Ky.) 438, 469 Gadsden, Elfe v. 2 Rich. (So. Car.) 373, 66 Gadsen v. Quaokenbush, 9 Rich. Law (So. Car.) 222, 90 Gaddie, Whitman v. 7 B. Mon. (Ky.) 591, 224 Gaff V. Sims, 45 Ind. 262, 1, 168 Gage V. Lewis, 68 111. 604, 171, 351 Gage V. Mechanics' National Bank of Chicago, 79 111. 62, 170, 208 Guge V. Sharp, 24 Iowa, 15, 354 Gahn, Niemcewicz v. 3 Paige, 614, 22, 204 Gahn v. Niemcewicz, 11 Wend. 312, 22 Gaines, CuUum v. 1 Ala. 23, 82 Galloway, Bonham ». 13 111. 68, 280 GaUant, Polk v. 2 Dev. & Batt. Eq. (Nor. Gar.) 395, 204 Gallagher v. Brunei, 6 Cowen, 347, 59,60 Gallagher, Wylie v. 46 Pa. St. 205, 446 GaUagher v. White, 31 Barb. (N. Y.)92, 85, 112 Gallaway, Farrington v. 10 Ohio, 543, 17 Galbraith, Shupe v. 32 Pa. St. 10, 8 Galbraith v. FuUerton, 53 111. 126, 309 Gale, Pence v. 20 Minn. 257, 370 Gale V. Nixon, 6 Cow. (N. T.) 445, 66 Gallentine, Burnham v. 11 Ind. 295, 86 Gamage v. Hutchins, 23 Me. 565, 119, 168 Gamewell, Hommell v. 5 Blaokf. (Ind.) 5, 181 Gamble, Fletcher v. 3 Ala. 335, 321, 325 Gamble, Hooker v. 12 Up. Can. C. P. R. 512, 317 Gammell ». Parramore, 58 Ga. 54, 170 Gammon, Bird v. 5 Scott, 213, 50 Gammon, Bird v. 3 Bing. N. 0. 883, 48 Gammon v. Stone, 1 Vesey, Sr. 339, 263 Gannett v. Blodgett, 39 New Hamp. 150, 266 Section Gans, Caldwell v. 1 Montana, 570, 419 Gaoler of Philadelphia, Republica V. 2 Tatea (Pa.) 263, 427 Garretson, Cummins v. 15 Ark. 132, * 505 Garber v. Commonwealth, 7 Pa. St. 265, 532 Garton v. Union City Bank, 34 . Mich. 279, 304 Garton, State v. 32 Ind. 1, 355 Garr v. Martin, 20 New York, 306, 217 Garrison, Gladwin v. 13 Cal. 330, 188 Garvin v. Mobley, 1 Bush (Ky.) 48, 349 Garrow, Phelps v. 8 Paige Ch. 322, 62 Garland, Prentiss v. 64 Me. 155, 86 Garey v. Hignutt, 32 Md. 552, 82 Gard «. Stevens, 12 Mich. 292, 137 Gamett v. Roper, 10 Ala. 842, 126 Garlinghouse, Wright v. 26 New York, 539, 156 Gary v. Cannon, 3 Ired. Eq. (Nor. Car.) 64, 204 Gary, Wadlingtou v. 7 Smedes & Mar. (Miss.) 522, 296, 308 Garth, Robinson v. 6 Ala. 204, 76 Gardenier, Fitch v. 2 Abbott's Rep. Omitted Cas. 153, 60 Gardiner v. Hopkins, 5 Wend. 23, 51 Gardiner v. Harback, 21 111. 129, 834 Gardiner. Praed v. 2 Cox, 86, 279 Gardners. King, 2 Ired. Law (Nor. Car.) 297, 9, 112 Gardner, VaUoton v. R. M. Charl- ton (Ga.) 86, 161 Gardner v. Van Nostrand, 13 Wis. 543, 321 Gardners. Walsh, 5 Ellis & Black. 83, 332 Gardner v. Watson, 13 111. 347, 298 Garrett, Bradner v. 19 La. (Curry) 455, 17 Garratt v. Eliff, 4 Humph. (Tenu.) 323, 515 Garrett r. Handley, 4 Barn. & Ores. 664, 96, 97 Garrett, Overacre v. 5 Lansing (N. Y.) 156, 460 Gardom, fx parte, 15 Vesey, 286, 10 Ixii TABLE OF CASES. Section Gaston v. Barney, 11 Ohio St, 506, 286 Gaston, Miller «. 2 Hill (N.Y.) 188, 150 Gasquet v. Thorn, 14 La. (Cun-y,) 506, 172 Gasquet v. Oakey, 19 La. (Curry,) 76, 197 Gass V. Stinson, 2 Sumner, 453, 842 Gaskins, Miller v. 1 Smedes &Mar. Ch. R. (Miss.) 524, 125. Gates V. Bell, 8 La. An. 62, 10 Gates, Campbell v. 17 Ind. 126, 352 Gates V. McKee, 13 New York, 232, 133 Gates V. Renfro, 7 La. An. 669, 197 Gaulden, Crawford v. 88 Ga. 173, 27, 806 Gault, Boyd v. 3 Bush (Ky.) 644, 492 Gausen v. TomUnson, 8 E. C. Green (N. J.) 405, 105 Gaussen Exr. United States «. 2 Woods, 92, 469 Gayle, Pearson v. 11 Ala. 278, 392 Gaylord, Decker v. 8 Hun (N. T.) 110, 90 Gaylord, Second National Bank v. 84 Iowa, 246, 178 Gay V. Mott, 43 Ga. 252, 7 Gay, Talbot v. 18 Pick. 534, 168 Geary v. Physic, 5 Barn. & Cres. 234, 66 Geary v. Gore Bank, 5 Grant's Ch. R. 586, 217 Geddis V. Hawk, 1 Watts (Pa.) 280, 82 Geddis, Hawk v. 16 Serg. & Rawle, 23, 82 Geddis v. Hawk, 10 Serg. & Rawle, (Pa.) 33, 207 Gedye v. Matson, 25 Beavan, 310, 266 Gee, Robinson v. 1 Vesey, Sr. 251, 21, 105 Gegg, Luckings' Admr. v. 12 Bush (Ky.) 298, 185 Geiger's Admr. Hansberger's Exr. «. 3 Gratt (Va.) 144, 323 Geiger v. Clark, 13 Cal. 679, 167 Gell, Tomlinson v. 6 Ad. & Ell. 564, 9, 50 Genge, Whitmarsh v. 8 Man. & Ryl. 42, 523 Section General Steam Navigation Co. v. Rolt, 6 J. Scott (N. S.) 550,_ 345 Generous, Kleinhaus v. 25 Ohio St. 667, 302 George, McKenna v. 2 Richardson Eq. (So. Car.) 15,- 289, 247, 248, 252 George, Whitnash v. 8 Barn. & Cress. 556, 523 German American Bank, Voss v. 83 111. 599, 377 German Natl. Bank of Memphis, White V. 9 Heisk. (Tenn.) 475, 518 German Savings Assn. v. Helm- rick, 57 Mo. 100, 306 German, Harrisburg Bank v. 8 Pa. St. 800, 261, 281 Gerber v. Ackley, 37 Wis. 43, 484 Gerber v. Ackley, 32 Wis. 233, 484 Gerrish, Riley v. 9 Cash. 104, 153 Gewin, Hodges v. 6 Ala. 478, 321 Gewin, McGehee v. 25 Ala. 176, 483, 487, 489 Ghiselin v. Pergusson, 4 Harris & Johns. (Md.) 522, 276 Gibb, Pybus v. 6 EU. & Black. 902, 469 Gibbs, Bickford v. 8 Cush. 154, 7, 175 Gibbs V. Blanohard, 15 Mich. 292, 62 Gibbs V. Cannon, 9 Serg. & Rawle, (Pa.) 198, 173, 174 Gibbs V. Mennard, 6 Paige Ch. R. 258, 194 Gibbons, Brown v. 37 Iowa, 654, 372 Gibbons v. McCasland, 1 Bam. & Aid. 690, 65 Gibson, Benton v. 1 Hill, Law (So. Car.) 56, 84. 172 Gibson, Cathcart v. 1 Richardson Law (So. Car.) 10, 225 Gibson, Denison v. 24 Mich. 187, 21, 22, 104, 201 Gibson, Dyer v. 16 Wis. 508, 63 Gibson, Erie Bank v. 1 Watts (Pa.) 143, 207 Gibson, Goss v. 8 Humph. (Tenn.) 197, 240 Gibson v. Martin, 7 Humph. (Tenn.) 415, 515 Gibson v. Rix, 32 Vt. 824, 289 TABLE OF OASES. Ixiii Section Gibson's Exr. Rhea v. 10 Gratt. (Va.) 215, 835 Giese, ElKott v. 7 Harr. & Johns. 457, 68 Gierman, Cressy v. 7 Minn. 898, 481 GifFord v. Allen, 3 Met. (Mass.) 255, 801 Grifl'ard, ex parte, 6 Vesey, 805, 383 Gilleland, Miller v. 19 Pa. St. 119, 331 Gilliam v. Esselman, 5 Sneed (Tenn.) 86, 261 Gilchrist. Williams v. 11 New Hamp. 535, 290 Gilder v. Jeter, 11 Ala. 256, 309 Giltinan, Strong v. 7 Philadelphia (Pa.) 176, 525 GiUilan v. Ludington, 6 "West. Va. 128, 505, 508 Giles' Ex'rs. Lining v. 3 Brevard (So. Car.) 530, 494 Gilette, BuUard v. 1 Montana, 509, 399 Gilson, Ball v. 7 Upper Can. C. P. R. .531, 17 Gilson, Common-wealth v. 8 Watts (Pa.) 214, 499 Gilbert, Bordon v. 13 Wis. 670, 116 Gilbert, Crocker v. 9 Gush. 131, 89 Gilbert, Goodwin v. 9 Mass. 510, 39 Gilbert v. Heuck, 30 Pa. St. 205, 84,86 Gilbert V. Isham, 16 Ct. 525, 452 Gilbert, Johnson v. 4 Hill, 178, 53 Gilmore's Admr. Hammond v. 14 Ct. 479, 166 Gilmore, Spies v. 1 New York, 321, 150 Gilmore, Warren v.- 11 Cush. 15, 431 Gillighan v. Boardman, 29 Me. 79, 7, 178 Gilligau V. Boardman, 28 Me. 81, 68 GUI V. Bicknell, 2 Cush. 355, 76 Gai V. Herrick, 111, Mass. 501, 62 GUI, New Hampshire Bank v. 16 New Hamp. 578, 305 GUI, Tomlinson v. Arab. 330, 48 Gilman v. Kibler, 6 Humph. 19, 68 Gilman v. Lewis, 15 Me. 452, 89 GUraan, Taylor «. 25 Vt. 411, 352 Gillespie v. Darwin, 6 Heisk. (Tenn.) 21, 387 Section Gillespie, Dennis v. 24 Miss. 581, 228 Gillespie, Kelly v. 12 Iowa, 55, 17, 309 GUlespie, MUler ». 59 Mo. 220, 240 Gillespie v. Torrance, 25 New York, 806, • 208 Gillett, MaUoryv. 21 New York, 412, 45 Gillett, Mallory v. 28 Barb. (N.Y.) 610, 50 Gillett V. Whitmarsh, 8 Adol. & Ell. (N. S.) 966, 361 Gillet V. Raohal, 9 Robinson (La.) 276, 312. 845 Gingrich v. People, 34 111. 448, 430 Girdler, Dance v. 4 Bos. & Pul. 34, 344 Girling, Wells v. 1 Brod. & Bing. 477; /(«. 4Moore, 78, 11 Girling, Wells v. 8 Taunt. 737. 116 Gist V. Drakely, 2 Gill (Md.) 830, 147, 161 Givan, State v. 45 Ind. 267, 453 Givens v. Briscoe, 3 J. J. Marsh. 311 (Ey.) 529, 218 Givens v. Nelson, 10 Leigh (Va.) 382, 284 Glasgow, Musgrave v. 3 Ind. 81, 48, 295 Glass, Cheek v. 8 Ind. 286, 305 Glass V. Thompson, 9 B. Mon. (Ky.) 235, 380 Glazier v. Douglass, 32 Ct. 393, 374 Gladwin v. Garrison, 13 Cal. 330, 188 Gleason v. Briggs, 28 Vt. 135, 48 Gleason, Morss v. 64 New York, 204, 23 Glen Cove Mut. Ins. Co. v. Harrold, 20 Barb. (N. Y.) 298, 74 Glenn v. Statler, 42 Iowa, 107, 107 Glenn v. Wallace, 4 Strob. Eq. (So. Car.) 149, 463 Gleed, Gregory v. 88 Vt. 405, 6, 68 Glidden v. Child, 122 Mass. 433, 62 Glover, Burke v. 21 Up. Can. Q. B. R. 294, 416 Globe Bank v. Small, 25 Me. 866, 168 Globe Mutual Ins. Co. v. Carson, 31 Mo. 218, 319 Glovers. Bobbins, 49 Ala. 219, 331 Ixiv TABLE or CASES. Section Glover, "Wilson v. 3 Pa. St. 404, 476 Glyn V. Hertel, 8 Taunton, 208, 102 Gobbold, Choppin v. 13 La. An.,238, 48 Godbe, Baskin v. 1 Utah, 28, 296 Godfrey, Chamberlain ». 36 Vt. 380, 524 Godwin V. Francis, Law Rep. 5 Com. P. 295, 75 Godwin, Merriken v. 2 Delaware Ch. R. 286, 26 Goddard v. Mockbee, 5 Cranoh (C. C.) 666, 49 Goddard, Salmon Palls Manf. Co. V. 14 How. (U. S.) 447, 66, 75, 76 Goddard v. Whyte, 2 Giffard, 449, 268 Goff V. Bankston, 35 Miss. 518, 849 Gold V. PhilUps, 10 Johns. 412, 53 Goles' Admx. v. Van Arman, 18 Ohio, 336, 115 Goldsmith, Connerat ». 6 Ga. 14, 44 Goldsberry, Pierce v. 31 Ind. 52, 307 Goldsberry, Pierce v. 35 Ind. 317, 319 Goldshede v. Swan, 1 Wels. Hurl. & Gor. 154, 68, 72 Gomer v. Lazarus, 1 Dev. Eq. (Nor. Car.) 205, 280 Goodin ». State, 10 Ohio, 6, 457 Gookin V. Sanborn, 3 New Hamp. 491, 496 Goodrum, Sherrell v. 3 Humph. (Tenn.) 419, 466 Goodhue v. Palmer, 13 Ind. 457, 310 Goodenow, Stowell v. 31 Me. 538, 312 Goodwyn v. Hightower, 30 Ga. 249, 296 Goodyear v. Watson, 14 Barb. (N. Y.) 481, 271 Goodall V. Wentworth, 20 Me. 822, 331 Goodloe V. Clay, 6 B. Mon. (Ky.) 236, 286, 288 Goodloe, Tudor v. 1 B. Mon. (Ky.) 322, 309 Goodrich, Penfield v. 10 Hun (N. T.) 41, 24 Goodspeed v. Puller, 46 Me. 141, 46 Qoode V. Burford, 14 La. An. 102, 497 Goode V. Jones, 9 Mo. 866, 155 Good 0. Martin, 17 Am. Law Reg. Ill, 151, 1S2„ 153 Section Goodwin v. Gilbert, 9 Mass. 510, 39 Goodwin, Jones v. 39 Cal. 498, 148 Goodwin, Keith v. 81 Vt. 268, 46, 94 223, 332 Goodwin, Railway Co. v. 3 Wels. Hurl. & Gor. 320, 343 Goodwin V. Stark, 15 New Hamp. 218, 440 Goodwin V. Buckman, 11 Iowa, 308, 84 Goodman v. Chase, 1 Bam. & Aid. 297, 48, 68 Goodman v. Griffin, 3 Stew. (Ala.) 160, ' 206 Goodman, Perkins v. 21 Barb. (N. T.) 218, 15 Goodman, Tracy v. 5 AUen. 409, 530 Gore Bank, Geary v. 5 Grant's Ch. R. 586, 217 Goring V. Edmonds, 3 Moore & Payne, 259, 171 Goring v. Edmonds, 6 Bing. 94, 171 Gorton, Smith v. 10 La. (Curry) 374, 149 Gorrie v. Woodley, 17 Irish Com. Law R. 221, 70, 75 Gordon, Baldwin v. 12 Martin (La.) 0. S. 378, 121, 206 Gordon, Buel v. 6 Johns. 126, 189 Gordon v. Calvert, 2 Simons, 253, 113 Gordon v. Calvert, 4 Russell, 581, 113 Gordon, Calvert v. 3 Man. & Ryl. 124, 113 Gordon, Clark v. 121 Mass. 330, 90 Gordon, Duulop ». 10 La. An. 243, 102 Gordon, Ex parte, 15 Vesey, 286, 68 Gordon, Hughes v. 7 Mo. 297, 506 Gordon, Kelly v. 3 Head (Tenn.) 688, 414 Gordon v. Martin, Fitzgibbon, .302, 63 Gordon v. McCarty, 3 Wharton, (Pa!) 407, 216 Gordon, McCarty v. 4 Wharton, (Pa.) 321, 216 Gordon v. Succession of Diggs, 9 La. An. 422, 405 Gordon v. Sims, 2 McCord Ch. (So. Car.) 151, 76 TABLE OF OASES. Ixv Section Gosbell V. Archer, 2 Adol. & Ell. 500, 75, 76 Gosserand v. Lacour, 8 La. An. 75, 303 Goswiler, Poortnant). 2 Watts (Pa.) 69, 203 Gossin V. Brown, 11 Pa. St. 527, 275 Goswiller's Estate, 3 Penn. & Watts, 200, 28 Gosling, Bateson v. Law. Eep. 7 Com. PL 9, 123 Gasman v. Cruger, 7 Hun, 60, 4 Goss V. Gibson, 8 Humph. (Tenn.) 197, 240 Goss, Kennedy v. 38 New York, 830, 303 Goss, Passumpsic Bank i>. 31 Vt. 315,- 354 Goss «. Watlington, 3 Brod. & Bing. 132, 523 Goss V. Watlington, 6 Moore, 355, 523 Gottsberger v. Radway, 2 Hilton, (N. Y.) 342, ■ 70 Gott V. State, 44 Md. 319, 327 Gourdin v. Read, 8 Richardson Law (So. Car.) 280, 857 Gough, Crane r. 4 Md. 316, 38 Gough, Edelen v. 5 Gill. 103, 68 Gould, Commonwealth v. 118 Mass. 300, 524 Gould V. Ellery, 39 Barb. (N. Y.) 163, 33 Gould V. Puller, 18 Me. 364, 237 Gould V. Gould, 8 Cowen, 168, 179 Gould, Mills V. 14 lud. 278, 319 , Gould, Middlefield v. 10 Up. Can. ' C. P. R. 9, 523 Govan V. Moore, 30 Ark. 667, 109 GoTan, Union Bank v. 10 Smedes & Mar. (Miss.) .333, 21, 323, 378 Governor v. Bowman, 44 111. 499, 324 Governor, Brooks v. 17 Ala. 806, 456 Governor v. Coble, 2 Dev. Law (Nor. Car.) 489, 460 Governor v. Dodd, 81 111. 162, 453 Governor v. Hancock, 2 Ala. 728, 483 Governor, Jemison v. 47 Ala. 390, 383 Governor v. Lagow, 43 111. 134, 324, 336 E Seotiok Governor, Lucas v. 6 Ala. 826, 530 Governor, M'Broom v. 6- Port. (Ala.) 32, 392 Governor, M'Broom v. 4 Port. (Ala.) 90, 525 Governor, McGrew v. 19 Ala. 89, 480 Governor, McNeale v. 8 Gratt. (Va.) 299, 519 Governor, Modisett v. 2 Blackf. (Ind.) 135, 522 Governor v. Perkins, 2 Bibb (Ky.) 895, 488 Governor, Rany v. 4 Blackf. (Ind.) 2, 141 Governor v Ridgway, 12 111. 14, 469 Governor v. Robbins, 7 Ala. 79, 462 Governors. Shelby, 2 Blackf. (Ind.) 26, 530, 532 Governor, Shelbys. 2Blackf. (Ind.) 289, 518 Governor, Smith v. 2 Robinson (Va.) 229, 519 Governor ». Stonum, 11 Ala. 679, 120 Gowing V. Cowgill, 12 Iowa, 495, 480 Gowdy, Wakeman v. 10 Bosw. (N. Y.) 208, 884 Grayson, Crozier v. 4 J. J. Marsh. (Ky.) 514, 182 Granger, Williams v. 4 Day (Conn.) 444, 170 Grace, Head v. 7 Hurl. & Nor. 4U, 70, 184 Grace, Lipscomb v. 26 Ark. 231, 189 Graham, Horsey ». Law E. 5 Com. P. 9, 67 Graham, Murray v. 29 Iowa, 520, 17 Graham v. Musson, 7 Scott, 769, 76 Graham, Mailing Union v. Law Rep. 5 Com. PI. 201, 843 Graham, Miner v. 24 Pa. St. 491, 113 Graham, Ogle j>. 2 Penn. & Watts, (Pa.) 132, . 338 Grant, Hare v. 77 Nor. Car. 203, 184 Grant v. Hotchkiss, 26 Barb. (N. Y.) 63, 70, 82 Grant v. Ridsdale, 2 Harris & Johns. (Md.) 186, 132 Grant, Rupert v. 6 Smedes & Mar. (Miss.) 438, 293 Ixvi TABLE OF CASES. Section Grrant v. Smith, 46 New York, 93, 98 Grant v. Shaw, 16 Mass. 341, 63 Grant, Wells v. 4 Yerg. (Tenn.) 491, 457 Grane, Toplis v. 5 Bing. (N. C.) 636, 46 Grafton Bank v. Kent, 4 New Hamp. 221, 17 Grafton Bank v. Woodward, 5 New Hamp. 99, 309, 312 Graves, Dyer v. 37 Vt. 369, 88 Graves v. Lebanon Natl. Bank, 10 Bush (Ky ) 23, 367 Graves, Ratoliffe v. 1 Vernon, 196, 117 Graves, Kemsen v. 41 New York, 471, 31, 319 Graves v. Tucker, 10 Smedes & Mar. (Mif^s.) 9, 353, 355 Gray, Barstow v. 3 Greenl. (Me.) • 409, 75 Gray v. Brovm, 1 Richai-dson, Law (So. Car.) 351, 493 Gray v. Bowls, 1 Dev. & Batt. Law (Nor. Car.) 437, 406 'Gray, Caperlon v. 4 Yerg. (Tenn.) 563, 61 Gray, Elliott v. 4 Stew. & Port. (Ala.) 168, 405 'Gray, Hatton v. 2 Ch. Cas. 164, 75 'Gray v. Jenkins, 24 Ala. 516, 496 Gray v. McDonald, 19 Wis. 213, 231 (Gray «. Merrill, 11 Bush, (Ky.) 633, 421 ■Gray, Moore v. 26 Ohio St. 525, 392 'Gray v. MacLean, 17 111. 404, 405 'Gray, Parrish v. 1 Humph. (Tenn.) 88, 504 . 16 Wis. 666, 17, 309 Gregg V. Wilson, 50 Ind. 490, 82 Gregory, Bently v. 7 T. B. Mon. (Ky.) 368, 198 Gregory v. Gleed, 33 Vt. 405, 6, 68 Gregory v. Logan, 7 Blackf. 112, 68 Gregory ». Murrell, 2 Ired. Bq. {Nor! Car.) 233, 233 Green, Parham ». 64 (Nor. Car.) 436, 257 Gregory v. Williaitis, 3 Meriv. 582, 58 Green, Voiles v. 43 Ind. 874, 332 Greaves, In re, 1 Cromp. & Jev. 374, 20, 88 Greve, Ham. v. 34 Ind. 18, 348, 365 Greely v. Dow, 2 Met. (Mass.) 176 301, 306 Gridley v. Capen, 72 111. 11, 92 Grieff V. Kirk, 17 La. An. 25, 898 6ri£F V. Steamboat Stacy, 12 La. An. 8, 390 Griggs, Longley v. 10 Pick. 121, 225 Grice v. Ricks, 3 Dev. Law (Nor. Car.) 62, 168 Grieve v. Smith, 23 Up. Can. Q. B. E. 23, 345 Grim ». School Directors, 51 Pa. St. 219, 357 Grider ». Payne, 9 Dana (Ky.) 188, 273 Grisgsby, Terby v. 9 Leigh (Va.) 387, 75, 76 Grimes v. Butler, 1 Bibb (Ky.) 192, 443 Grimes v. Nolen, 8 Humph. (Tenn.) 412, 325 Grimes, Perigo G. M. & T. Co. v. 2 Colorado, 651, 416 Griffin, Canby v. 3 Harrington (Del.) 333, 431 Griffin, Goodman v. 3 Stew. (Ala.) 160, 206 Griffin v. Hampton, 21 Ga. 198, 264 Griffin, Lee v. 31 Miss. 632, 275 Griffin v. Moore. 2 Kelly (Ga.) 331, 426, 428 Griffin, Marsh v. 42 Iowa, 403, 331 Griffin !). Orman, 9 Florida, 22, 260 Griffin V. Rembert, 2 Rich. Law. N. S. (So. Car.) 410, 96, 175 Griswold, Jackson v. 4 Hill (N.T.) 522, 524 Section Griswold, Roberts v. 35 Vt. 496, 9, 100 Griffith, Braught». 16 Iowa, 26, 264 Griffith, Champion®. 13 Ohio, 228, 147, 148 Griffith V. Reynolds, 4 Gratt. (Va.) 46, 253 Griffith V. Turner, 4 Gill (Md.) Ill, 520 Gross V. Parrott, 16 Cal. 143, 313 Grove ». Dubois, 1 Term R. 112, 57 Grover, Barney v. 28 Vt. 391, 177 Grover& Baker S. M. Co., Wright ■0. 82 Pa. St. 80, 269 Grover, Brown ». 6 Bush (Ky.l 1, 536 Grover v. Hoppock, 2 Dutoher (N. J.) 191, 214, 308 Grover, Fletcher v. 11 New Hamp. 368, 251 Grover, Towns v. 9 Pick. 306, 60 Groot, Whitney v. 24 Wend. 82, 167 Groot, Whitney v. 24 Wend. 82, 137 Groves, Kay v. 3 Moore & Payne, 634, 135 Groves, Kay v. 6 Bing. 276, 135 Grocer's Bank v. Kingman, 16 Gray, 473, 12, 343 Grubb V. Bullock, 44 Ga. 379, 436 Grundy v. Meighan, 7 Irish Law Rep. 519, 122 Gryle, Gryle v. 2 Atkyns, 177, 75 Guardians of Litchfield Union v. Green, 1 Hurl. & Nor. 884, 289 Guenther, Ernestine Appeal of, 40 Wis. 115, 116 Guiou V. Ford, 12 Robinson (La.) 123, 438 Guise, Simmons v. 46 G;a. 473, 316 Guild V. Butler, 5, The Reporter, 15, 374 Guild, Haseltine v. 11 New Hamp. 390, 188 Ouillot, Ancion u. 10 La. An. 124, 12 Gull V. Lindsay, 4 Wels. Hurl. & Gor. 45, 48 Gunter, Rosenbaum v. 2 E. D. Smith (N. Y.) 415, 68 Gunn, Edwards v. 3 Ct. 316, 426 Gunn ». Madigan, 28 Wis. 158, 89 Gunn, Rawle v. 4 Bing. N. C. 445, 38 Ixviii TABLE OF CASES. Section Gurney, Hubbard v. 64 New York, 457, 17, 316 Gurney, Patten v. 17 Mass. 182, 59 Gustine v. Union Bank, 10 Eobin- son (La.) 412, 825, 329 Guthrie v. Morrison, 1 Harrington (Del.) 368, 486 Guthrie, Steadman v. 4 Met. (Ky.) 147, 158 Guy, Lucas v. 2 Bailey Law (So. Car.) 403, 257 Gwathney, Johnston.©. 2 Bibb (Ky.) 186. 443 Gwyn V. Patterson, 72 Nor. Car. 189, 355 Gwynne v. Bumell, 7 Clark & Fin- nelly, 572, 468 Gwynne, Collins v. 2 Moore & Scott. 640, 474 Hackleman v. Miller, 4 Blackf. (Ind.)'322, 58 Hacker, Johnson v. 8 Heisk. (Tenn.) 388, 324 Haden v. Brown, 18 Ala. 641, 206, 296 Haddens v. Chambers, 2 Dallas, (Pa.) 236, 189 Hadley, Holl o. 4 Neyille & Man. 515, 850 Hagier, Jones v. 6 Jones Law (Nor. Car.) 542, 126 Hagey v. Hill, 75 Pa. St. 108, 329 Haggerty, Brown v. 26 111. 469, 17, 293 Eager, Pluck v. 51 Pa. St. 459, 288 Hagar v. Mounts, 3 Blackf. (Ind.) 57, 362 Hagadom, Pickney v. 1 Duer (N. Y.)-89, 76 Hain, Byerle v. 61 Pa. St. 226, 467 Haines v. Dennett, 11 New H. 180, 333 Hairston v. Hughes, 3 Munf. (Va.) 568, 494 Haigh V. Brooks, 10 Adol. & Ell. 309, 72 Haight, Mains v. 14 Barb. (N. T.) 76, 82, 85 Sectiok Haight, Eedfield v. 27 Conn. 31 30, 82, 187 Haley, Skofleld v. 22 Me. 164, 172 Halsey, Lafarge v. 1 Bosw. (N. Y.) 171, 203 Halliburton v. Carter, 55 Mo. 435, 189 Halliday v. Hart, 80 New York, 474, 806, 537 Halsa, Halsa v. 8 Mo. 303, 68 Halstead v. Brown, 17 Ind. 202, ' 208,308 Hale, Archer v. 1 Moore & Payne, 285, 416 Hale, Archer v. 4 Bingham, 464, 416 Hale, Beekman v. 17 Johns. 134, 161 Hale V. Commonwealth, 8 Pa. St. 415, 481 Hale, Poster v. 3 Vesey, Jr. 696, 66 Hale V. Russ, 1 Greenl. (Me.) 834, 440 Hale, Salisbury v. 12 Pick. 416, 173 Hall, Blackhouse v. 6 Best & Smith, 507, 98 Hall, Cailleux v. 1 E. D. Smith (N. Y.) 5, 52 Hall, Clompton's Exrs. v. 51 Miss. 482, 9 Hall V. Constant, 2 Hall (N. Y.) 205, 806 Hall V. Cushman, 16 New Hamp. 462, 233 Hall V. Farmer, 5 Denio, 484, 74 Hall V. Fowler, 6 Hill, 680, 409 Hall, Hodges v. 29 Vt. 209, 46 Hall B. Hall, 84 Ind. 314, 25 Hall V. Hall, 10 Humph. (Tenn.) 352, 177 Hall, Hickman v. 5 Littell (Ky.) ■ 338, 210 Hall V. McHenry, 19 Iowa, 521, 332, 383 Hall V. Newcomb, 3 Hill (N. Y.) 238, 150 Hall V. Newcomb, 7 Hill, 416, 150, 153 Hall V. Rand, 8 Ct. 560, 136, 537 Hall V. Robinson, 8 Ired. Law (Nor. Car.) 56, 283 Hall V. Rodgers, 7 Humph. (Tenn.) 586, 53 TABLE OF OASES. Ixiz Section Hall, Reynolds v. 1 Scam. (111.) 35, 470 Hall, Scott V. 6 B, Mon. (Ky.) 285, 309 HaU V. Smith. 5 Howard (U. S.) 96, 180 Hall, Sparks v. J. J. Marsh. (Ky.) 35, 296 Hall V. Soule, 11 Mich. 494, 67 Hall, Steams v. 9 Gush. 31, 67 Hall, Thompson v. 16 Ala. 204, 68 HaU V. Thompson, 9 Up. Can. C. P. R. 257, 123 Hall, Thompson «. 45 Barb. (N. y.) 214, 352 Hall, Treasurer of Pickaway v. 3 Ohio, 225, 494 Hall, Williamson's Admr. v. 1 Ohio St. 190, 411 Hall V. Williamson's Admr. 9 Ohio St. 17, 411 Hall V. White, 27 Ct. 488, 438, 525 Hall, Queen v. 1 Up. Can 0. P. R. 406, 142 Hall's Admr. v. Creswell, 12 Gttl. & Johns. (Md.) 36, ' 182 Hamblin v. McCallister, 4 Bush (Ky.) 418, 508 Hamner v. Mason, 24 Ala. 480, • 492 Hammock v. Baker, 3 Bush (Ky.) 208, ' 421 Hamlin, McQuewans v. 35 Pa. St. 517, 10 Haman v. Howe, 27 Gratt. (Va.) 676, 3:0 Ham )). Greve, 34 Ind. 18, 348, 3,65 Ham, Norris v. R. M. Charlton (Ga.) 267, 271 Hamar v. Alexander, 5 Bos. & Pul. 241, 59 Hamer, Newell». 4 Howard (Miss.) 684, 27, 206 Hamilton, Beesly v. 50 111. 88, 349 Hamilton v. Bryant, 114 Mass. 527, 409 Hamilton, Butler v. 2 Desaussure, Eq. (So. Car.) 226, 296 Hamilton v. Dunklee, 1 New Hamp. 172, 428 Hamilton, Montgomery v. 43 Ind. 451, 300 Section Hamilton, Ritter v. 4 Texas, 325, 503 Hamilton v. Van Rensselaer, 43 New York, 244, 110 Hamilton v. Van Rensselaer, 43 Barb. (N.Y.) 117, 92 Ham Iton v. Watson, 12 Clark & Fmnelly, 109, 365 Hamilton v. Winterrowd, 43 Ind. 393, 305 Hampton, Griffin v. 21 Ga. 198, 264 Hampton, Levy v. 1 McCord Law (So. Car.) 145, 18 Hampton- V. Levy, 1 McCord Eq. (So. Car.) 107, 389 Hampton, Shehau v. 8 Ala. 942, 504, 517 Hampton, State v. 14 La. An. 690, 82, 452 Hampton, State v. 14 La. An. 736, 442 Hammond, Bank v. 1 Rich. Law (So. Car.) 281, 170 Hammond v. ChamberHn, 28 Vt. 406, 84 Hammond, Franklin v. 46 Pa. St. 507, 446 Hammond v. Gilmore's Admr. 14 Ct. 479, • 166 Hammond, State v. 6 GiU. & Johns. (Md.) 157, 325 Hammond, United States v. 4 Bis- sell, 283, 349 Hanna v. International Petrolium Co. 23 Ohio St. 622, 418 Hank V. Crittenden, 2 McLean, 557, i72 Hannan's Heirs, King v. 6 La. (Cur- ry.). 607, 283 Hansberger's Admr. Kinney, 13 Gratt. (Va.) 511, 305 Hansberger's Exr. v. Geiger's Admr. 3 Gratt. (Va.) 144, 323 Hancock i>. Bryant, 2 Yerg. (Term.) 476, 206, 207 Hancock, Governor v. 2 Ala. 728, 483 Hancock, Parnell v. 48 Cal. 452, 399 Handley, Garrett v. 4 Barn. & Ores. 664. " 96, 97 Handley, Spencer v. 5 Scott (N. R.) 546, 354 Ixx TABLE OF CASES. Section Hanson v. Barnes, 9 Gill & Johns. (Md.) 359, 66 Hanson v. Crawley, 41 Ga. 303, 333 Hanson, Whitehouse v. 42 New Hamp. 9, 46, 223 Hansford, Burton v. 10 West Va. 470, 152, 153 Hanford v. Higgins, 1 Bosw. (N. , Y.} 441, 62 Hanford, Quin v. 1 Hill, 82, 49, 60 Hanford v. Rogers, 11 Barb. (N. Y.) 18, 73 Happe V. Stout, 2 Cal. 460, • 70 Harbaok, Gardiner v. 21 lU. 129, 334 Hard, Quinn v. 43 Vt. 375, 353 Hardman, Walker v. 4 Clark & Finnelly, 258, 107 Hardcastle ». Commercial Bank, 1 Harrington (Del.) 374, 281 Hardesty, Jones v. 10 Gill. & Johns. 404, 58 Hardy, Blood v. 15 Me. 61, 76 Hardy, Nelson v. 7 Ind. 364, 49 Hardwick v. Wright, 35 Beavan, 133, 375 Harbin, Lewis v. 5 B. Mon. (Ky.) 564, 296 Harbert v. Dumont, 3 Ind. 346, 301, 309 Harker, Bonsai v. 2 Harrington (Del.) 327, 436 Hargreave v. Smel, 6 Bing. 244, 132 Harger v. McCoUoagh, 2 Denio, 119, 26 Harman v. Howe, 27 Gratt. (Va.) 676, 415 Harmon, Pitzer ». 8 Blackf. (Ind.) 112, 181 Harral, Reynolds v. 2 Strobhart Law (So. Car.) 87, 441 Harrisburg Bank v. German, 3 Pa. St. 300, 261, 281 Harrold, Glen Cove Mut. Ins. Co. V. 20 Barb. (N. Y.) 298, 74 Harold, Anderson p. W Ohio, 399, 75 Harrop, Buokmaster v. 7 Vesey, 341, 76 Harper, Aldridge v. 10 Bingham, 118, 416 Harter v. Moore, 5 Blackf. (Ind.) 367, 362 Section Hartland, Nash v. 2 Irish Law Rep. 190, 70, 103 Hartley, People v. 21 Cal. 585, 127 Hartshorn, Penniman, 13 Mass. 87, 75 Harwood v. Kiersted, 20 111. 367, 9 Hazard Powder Co. Martin v. 2 Colorado, 596, 70 Hare v. Grant, 77 Nor. Car. 203, 184 Harlan ». Wingate, 2 J. J. Marsh. (Ey.) 138, 209 Harriman v. Egbert, 36 Iowa, 270, 504 Han-ington v. Dennie, 13 Mass. 93, 430 Harrington, Newlan v. 24 111. 206, 333 Harsh v. Klepper, 28 Ohio St. 200, 330 Harshman v. Armstrong, 43 Ind. 126, 226 Harp V. Osgood, 2 HUl (N. T.) 216, 426, 440 Harley v. Stapleton's Admr., 24 Mo. 248, 185 Harley, Trent Navigation Co. 10 East, 34, 391 Harracline, Pooley v. 7 Ell. & Black. 431, 17, 19, 328 Hart, Battle v. 2 Dev. Eq. (Nor. Car.) 81, 219 Hart ». Clouser, 30 Ind. 210. 831 Hart, Dock v. 7 Watts & Serg. 172, 38 Hart, Halliday v. 80 New York, 474, 306, 537 Hart V. Hudson, 6 Duer (N. Y.) 294, 316 Hart, Kounts v. 17 Ind, 329, 331 Hart, Rhodes v. 51 Ga. 320, 333 Hart, Tallmadge v. 2 Day (Conn.) 381, 59 Hart, Wilson w. 7 Taunt. 295, 76 Hart V. Woods, 7 Blackf. (Ind.) 568, 76 Harris' Admr. Bentley v. 2 Gratt. (Va.) 358, 222, 415 Harris v. Brooks, 21 Pick. 195, 17 46, 211 Harris v. Clap, 1 Mass. 308, 93 Harris v. Carlisle, 12 Ohio, 169, 239 Harris, Elliott v. 9 Bush (Ky ) 237, 213 Harris v. Ferguson, 2 Bailey Law (So. Car.) 397, 222 TABLE OF CASES. Ixxi Section Harris v. Huntbach, 1 Barrow, 373, 44 Harris v. Newell, 42 "Wis. 687, 1, 208 Harris v. Pierce, 6 Ind. 162, 158 Hams, Sabine v. 12 Iowa, 87, 172 Harris, Scott v. 76 Nor. Car. 205, 309 Harris v. Simpson, 4 Littell (Ky.) 165, 434 Harris, Varnam». 1 Huu (N. Y.) 451, 23 Harris v. Venables, Law Rep. 7 Exch. 235, 8 Harris, Voltz v. 40 111. 155, 172, 178 Harris v. Warner, 13 Wend. 400, 224 Harris, Wright v. 31 Iowa, 272, 335, 481 Harris v. Young, 40 Ga. 65, 9 Harriss v. Fawcett, Law Rep. 15 Eq. Cas. 311, 114 Harriss ». Fawcett, Law Rep. 8 Chan. Appl. Cas. 866, 114 Harrison, Corporation of Whitby V. 18 Up. Can. Q. B. R. 606, 445 Harrison v. Field, 2 Wash. (Va.) 136, 80, 117 Harrison, Farmers & Traders Bank V. 57 Mo. 503, 310 Harrison, Floyd v. 4 Bibb (K^y.) 76, 55 Harrison, Hoboken v. 1 Vroom (N. J.) 73, 12, 81 Harrison, Johns v. 20 Ind. 317, 333 Harrison v. Lane, 5 Leigh (Va.) 414, 463 Harrison v. Phillips, 46 Mo. 520, 237 Harrison v. Sawtel, 10 Johns. 242, 46 Harrison v. Seymour, Law Rep. 1 Com. PL 518, 346 Harrison, Smith v. 33 Ala. 706, 260 Harrison, State v. Harper Law (So. Car.) 88, 456 Harrison v. TurbeviUe, 2 Humph. (Tenn.) 242, 336 Harrison, Wardlaw v. 11 Rich. Law (So. Car.) 626, 159 Harrison's Exra. v. Price's Exrs. 25 Gratt. (Va.) 553, 507, 513 Hargreaves v. Parsons, 13 Mees. & Wels. 561, S8 Section Hargreave v. Smee 6 Bing, 244, 78 Hargreave v. Smee, 3 Moore & Payne, 573, 132 Hargroves «. Cook, 15 Ga. 321, 9, 68 Hartraan v. Burlingame, 9 Cal. 557, 17, 208 Hartman v. Banner, 74 Pa. St. 86, 810 Hartman, Meyer v. 72 111. 442, 49, 52 Hartman, Morrison v. 14 Pa. St. 55, 382 HartnoU, Cripps v. 4 Best & Smith, 414, 45, 46 HartweU v. Smith, 15 Ohio St. 209, 230 HartweU v. Whitman, 36 Ala. 712, 233 Harvey v. Bacon, 9 Yerg. (Tenn.) 308, 503 Harvey, Huntington v. 4 Conn. 124, 61 Harvey, Peabody v. 4 Conn. 119, 61 Harvey's Exr. Steptoe's Admr. v. 7 Leigh (Va.) 501, 827 Harding, Neel v. 2 Met. (Ky.) 247, 17 Harding, Siugstaok v. 4 Harr. & Johns. 186, 76 Hastings v. Clendaniel, 2 Del. Ch. R. 165, 833 Hasty, Eaton v. 6 Nebraska, 419, 260 HasseU v. Long, 2 Maule & Sel. 363, 139 Haseltine v. Guild, 11 New Hamp. 390, 188 Haseltine, Otis v. 27 Cal. 80, 73 Hasleham v. Young, 5 Ad. & Ell. (N. S.) 833, 10 Haslock V. Fergusson, 7 Ad. & Ell. 86, 59 Hiistie, Couturier v. 5 House of Lords Cas. 678, 67 Hastie, Couturier v. 8 Wels. Hurl. & Gor. 40, 57 Hastie v. Couturier, 9 Wels. Hurl. &.Gor. 102, 57 Hasey, Myrick v. 27 Me. 9, 86 Haskell, Bank v. 51 New Hamp. 116, 211, 360 Haskins, Charles v. 11 Iowa, 329, 484, 488 Hatfield, Dixon v. 2 Bing. 439, 63 Hatton V. Gray, 2 Ch. Cas. 164, 75 Ixxii TABLE OF CASES. SeotIon Hatz' Exrs. Kramph's Ex's v. 52 Pa. St. 525, 1, 529 Hathaway v. Davis, 33 Cal. 161, 392 Hathaway, Farmers' & Mechanics' Bank v. 86 Vt. 589, 861 Hatch V. Antrim, 51 111. 106, 87 Hatch V. Elkins, 65 New York, 489, 518 Hatch V. Hobbs, 12 Gray, 447, 134 Hatch V. Norris, 36 Me. 419, 25 Hathorn, Chase v. 61 Me. 505, 95, 127 Hathorn, State v. 36 Miss. 491, 473 Hauok, Kruttschmitt v. 6 Nevada, 163, 464 Haven v. Foley, 18 Mo. 136, 282 Haven v. Foudi-y, 4 Met. (Ky.) 247, 285 Haviland, Casky ». 13 Ala. 814, 521 Hawley v. Bradford, 9 Paige, 200, 22 Hawkes, Sadler v. 1 Roll. Abr. 27, pi. 49, 8 Hawk, Goddis v. 10 Serg, & Rawle (Pa.) 33, 207 Hawk V. Geddis, 16 Serg. & Eawle, 23, 82 Hawk, Geddis v. 1 Watts (Pa.) 280, 82 Haw, Police Jury v. 2 La. (Miller,) 41, 536 Haw, Police Jury v. 1 La. (Miller,) 41, ■ 849 Hawes v. Armstrong, 1 Scott, 661, 71 Hawes v. Armstrong, 1 Bing. (N. C.) 761, 68, 70, 71 Hawes V. Marohant, 1 Curtis, 136, 5 Hawkins v. Chaoe, 19 Pick. 502, 75,76 Hawkins v. Humble, 5 Cold. (Tenn.) 531, 361 Hawkins v. Holmes, 1 P. Wms. 770, 75 Hawldns v. May, 12 Ala. 673, 188 Hawkins i>. New Orleans Print. & Pub. Co. 29 La. An. 134, , 98 Hawkins v. Eidenhour, 13 Mo. 125, 215 Hawkins v. Thornton, 1 Terger, (Tenn.) 146, 396 Section Hawkins, Smith v. 6 Ct. 444, 299 Hayman, Anderson v. 1 H. Black. 120, 62 Haycraft v. Creasy, 2 East, 92, 59 Haycraft, Wilde v. 2 Duvall (Ky.) 309, 135 Hayden v. Cabot, 17 Mass. 183 Hayden v. Crane, 1 Lansing (N. Y.) 181, 136 Hayden, Melville v. 3 Barn. & Aid. 503, 137 Hayden ». Rice, 18 Vt. 353, 226 Haydon v. Christopher, 1 J. J. Marsh. (Ky.) 372, 52 Hayes v. Davis, 18 New Hamp. 600, 233 Hayes, Elliott v. 8 Gray, 164, 110 Hayes v. Joseph', 26 Cal. 535, 295 Hayes v. Little, 52 Ga. 555, 388 Hayes, Ranelagh v. 1 Vernon, 189, 82 Hayes v. Seaver, 7 Greenl. (Me.) 237, 496 Hayes, State v. 7 La. An. 118, 475 Hayes v. Ward, 4 Johns. Cli. R. 123, 82, 204, 205 Hayes v. Wells, 34 Md. 512, 298, 313 Hays V. Ford, 55 Ind. 52, ' 240 Hays, Ranelaugh v. 1 Vernon, 189, 205 Ha.ynes, Cobb v. 8 B. Mon. (Ky.) 187, 222 Haynes v. Covington, 9 Smedes & Mar. (Miss.) 470, 296, 529 Haynes, Maxwell v. 41 Me. 559, 52 Haynes, Oxford Bank v. 8 Pick. 423, 154, 168 Hazard, Mechanics' Bank v. 13 Johns. 353, 271 Hazen v. Bearden, 4 Sneed (Term.) 48, 63 Hazlerigg, Newman v. 1 Bush (Ky.)412, 290 Headington v. Neff, 7 Ohio, 229, 517 Headlee, Admr. v. Jones. 43 Mo. 235, 317 Head v. Green, 5 Bissell, 311, 81 Head, Smyley v. 2 Rich. Law. (So. Car.) 590, 128, 215 TABLE OF CASES. Ixxiii Section Heath V. Deny Bank, 44 New Hamp. 174, 28, 209 Heath, Horsey t;. 5 Ohio, 853, 256 Heath v. Kay, 1 Younge & Jer. 484, 296 Heath v. Shrempp, 22 La. An. 167, 487 Heath's Garnishees, Eddy v. 81 Mo. 141, 478 Heard v. Lodge, 20 Pick. 53, 632 Hearn, Way v. 11 J. Scott (N. S.) 774, 303 Heart v. Bryan, 2 Devereux Eq. {Nor. Car.) 147, 260 Heart, Elkins v. Fitzg. 202, 56 Heart, Zent's Exrs. v. 8 Pa. St. 337, 120 Heaton v. Hulbert, 3 Scam, (m.) 489, 33, 36, 86 Heaton, Joseph v. 5 Grant's Ch. R. 636, 21, 276 Hebenstreit, Frey v. 1 Robinson (La.) 561. 429 Hebert v. Hebert, 22 La. An. 308, 500 Hedden, Pratt v. 121 Mass. 116, 9 Hedges v. Strong, 8 Oregon, 18, 48 Hedrlck, Creigh v. 5 West Va. 140, 18 Heeter v. Jewell, 6 Bush (Ky.) 510, 487 Heelis, Emmerson v. 2 Taunt. 38, 76 HefBeld v. Meadows, Law Rep. 4 Com. PI. 595, 130, 184 Hefferman, Mauri v. 18 Johns, 58, 176 Heidi nheimfr v. Mayer, 10 Jones & Spen. (N. Y.) 506, 107 Heirs of Barr, Elam v. 14 La. An. 682, 13 Heintz v. Cahn, 29 lU. 308, 147 Heitshu, Caldwell v. 9 Watts & Serg. (Pa.) 51, 8, 361 Helsey, Bivins v. 4 Met. (Ky.) 78, 349 Helm's Admr. v. Young, 9 B. Mon. (Ky.) 394, 283 Helrae, Williams v. 1 Dey. Bq. (Nor. Car.) 151, 196 Helmrick, German Savings Assn. V. 57 Mo. 100, 306 Helen v. Crawford, 44 Pa. St. 105, 207 Helgenberg, Irwm v. 21 Ind. 106, 513 Section Hemphill, Tremper v. 8 Leigh (Ya.) 623, 368 Hempstead v. Conway, 6 Ark. (1 Eng.) 317, 209 Hempstead v. Watkins, 6 Ark. (1 Eng.) 317, 206 Henly i>. Stemmons, 4 B. Mon. (Ky.) 131, 276 Hendry v. Clardy, 8 Fla. 77, 491 Hendrick v. Whittemore, 105 Mass. 23, 46 Hendrickson v. ' Hutchinson, 5 Dutcher (N. J.) 180, 17 Hendrie v. Berkowitz, 37 Cal. 113, 537 Henty, Clarke «. 3 Younge & CoU. (Exch.) 187, 317 Henry ».Compton, 2 Head (Tenn.) 549, 204 Henry, Ward v. 5 Ct. 595, 180 Henry's Admr. Flucker v. 27 Ala. 403, 26 Heuck, Gilbert v. 30 Pa. St. 205, 84, 86 Hening, Cherry v. 4 Wels. Hurl. & Gor. 631, 75 Henning, Preston v. 6 Bush (Ky.) 556, 805 Henderson's Admr. v. Ardery's Admr. 36 Pa. St. 449, 296 Henderson, Burnett v. 21 Texas, 588, 445 Henderson v. Coover, 4 Nevada, 429, 473 Henderson v. Duffee, 5 New Hamp. 38, 252 Henderson, Admr. v. Huey, 45 Ala. 275, ' 372 Henderson v. Johnson, 6 Ga. 390, 68 Henderson, Kelly v. 1 Pa. St. 495, 429 Henderson v. Marvin, 31 Barb. (N. Y.) 297, 108 Henderson «). Rice, 1 Cold. (Tenn.) 223, 7 Hendricks, Stanly ». 13 Ired. (Nor. Car.) £6. 49 Hendricks v. Whittemore, 105 Mass. 23. 229 Henley, Colgin v. 6 Leigh (Va.) 85, 9, 68, 88 Ixxiv TABLE OF CASES. Section Henley v. Stemmons, 4 B. Mon. (Ky.) 131, 265 Herring v. Hoppock, 15 New York, 409, 423 Herr, People v. 81 111. 125, ' 480 Herter, LaFarge v. 11 Barb. (N. Y.) 159, 27 HerLer, LaFarge v. 3 Denio, 157, 27 Heralson v. Mason, 53 Mo. 211, 84 Hertel, Glyn v. 8 Taunton, 208, 102 Hershfield, Pinney v. 1 Montana, 367, 410 Hereford v. Chase, 1 Robinson (La.) 212, 371 Hersbler v. Reynolds, 22 Iowa, 152, 325 Herbert v. Hobbs, 3 Stew. (Ala.) 9, 206, 209 Herrick v. Borst, 4 Hill (N. Y.) 650, 206 Herrick, Gill v. Ill Mass. 501, 62 Herrick, Hogaboom v. 4 Vt. 131, 205, 206, 208, 211, Herrick v. Orange Go. Bank, 27 Vt. 584, 391 Hess ». Pox, 10 "Wend. 436, 38 Hess' Estate, 69 Pa. St. 272, 269 Hetfield v. Dow, 3 Dntcb. (N. J.) 440, ■ 62, 63 Hetberington v. Bank at Mobile, 14 Ala. 68, 382 Hetberington v. Hixon, 46 Ala. 297, 6 Hewett, Langan v. 13 Smedes & Marsh, 122, 10 Hewitt's Admr. v. Adams, 1 Pat- ton, Jr. & Heath (Va.) 34, 383 Hewitt, Lilley w. 11 Price, 494, 77 Hewitt, Webb ». 3 Kay & Johns. 438, 123, 329 Heydrick, Barnard v. 49 Barb. (N. Y.) 62, 75, Heydock, Judge of Probate v. 8 New Hamp. 491, 93 Heynemann v. Eder, 17 Gal. 433, 407 Heywood, Collinge v. 9 Adol. & BU. 633, 199 Hibbs, Kelsey v. 13 Ohio St. 340, 55 Hibbs V. Rue, 4 Pa. St. 348, 109 Sectiok Hicks, Arnold v. 3 Ired. Eq. (Nor. Caa-.) 17, 204 Hicks V. Bailey, 16 Tex. 229, 182 Hicks, Sawyer v. 6 Watts (Pa.) 76, 326, 470 Hicks, State v. 2 Blackf. (Ind.) 836, 448 Hickman v. Hall, 5 Littell (Ky.) 338, 210 Hickman v. HoUingsworth, 17 Mo. 475, 510 Hickman v. MoCurdy, 7 J. J. Mar. (Ky.) 555, 250 Hickok u. Farmers' & Mechanics' Bank, 85 Vt. 476, 206, 208, 352 Hidden v. Bishop, 5 Rhode Is. 29, 291 Hightshue, Shimer v. 7 Blackf. (Ind.) 238, 393 Highland Bank, Lee v. 2 Sandf. Gh. R. 311, 361 High V. Cox, 55 Ga. 662, 211 Hight, Wiley v. 39 Mo. 130, 310 Hightower, Goodwyn v. 30 Ga. 249, 296 Hightower v. Moore,'46 Ala. 887, 113 Higdon V. BaUey, 26 Ga. 426, 17, 374 Higginson, Cremer v. 1 Mason, 323, 98, 136, 163 Higgins, Aldricks v. 16 Serg. & Rawle. 212, 136 Higgins, C. & A. R. R. Co. v. 58 111. 128, 102 Higgins, Hanford v. 1 Bosw. (N. Y.)441, 62 Higgins V. Morrison's Exr. 4 Dana (Ky.) 100, 235 Higgins, Ogier v. 2 McCord Law (So. Car.) 8, 427 Hignutt, Garey v. 32 Md. 552, 82 Hikes V. Crawford, 4 Bush (Ky.) 19, 186 Hiltz V. Scully, 1 Cine. 554, 63 Hilton V. Dinsmore, 21 Me. 410, 49 Hiller, Apgar's Admrs. v. 4 Zabr. (N. J.) 812, 178 Hillary v. Rose, 9 Phila. (Pa.) 139, 84 Hilgert, Commonwealth v. 55 Pa. St. 236, 499 TABLE OF OASES. Ixxv Section Hillyer, Taylor v. 3 Blaokf. (Ind.) 433, 54 Hilliard, Treasurers v. 8 Richard- son Law (So. Car.) 412, 4-56, 485 Hiler, Apgar's Admr. v. 4 Zabris- kie (N. J.) 812, 46, 187, 198 Hillhouse, Breed v. 7 Ct. 528, 8, 164, 175 HiU, Alcock V. 4 Leigh (Va.) 622, 298 Hill, Blaokstone Bank v. 10 Pick. 129, 805 HiU V. Bostick, 10 Terg. (Tenn.) 410, 319 Hill V. Boiircier, 29 La. An. 841, 884 Hill ;;. Bull, 1 Gamer (Va.) 149, 296 Hill V. Calvert, 1 Rich. Eq. (So. Car.) 56, 335 Hill, Carson v. 1 McMuUen Law (So. Car.) 76, 356 Hill, Conorer v. 76 HI. 342, 248 HUl Hagey v. 75 Pa. St. 108, 829 HUl, Jacobs V. 2 Leigh (Va.) 393, 145, 625 Hill V. Johnston, 3 Ired. Eq. (Nor. Car.) 432, 75 Hill V. Kelly Ridgeway, Lapp & Schoales, (Irish) 265, 263 Hill V. Kemble, 9 Cal. 71, 483, 487 HiU, Leech v. 4 Watts (Pa.) 448, 147, 153, 173 Hill V. Mauser, 11 Gratt. (Va.) 552, 270 HUl V. Morse, 61 Me. 541. 241 HiU V. Raymond, 3 Allen, 540, 62 HiU V. Sewell, 27 Ark. 15, 388, 486 HUl V. Sherman, 15 Iowa, 365, 504 Hill V. Sweetzer, 5 New Hamp. 168, 349 HiU V. Witmer, 2 Philadelphia (Pa.) 72, 21 HiU, Worcester Savings Bank v. 113 Mass. 25, 8, 364 Hill V. Wright, 28 Ark. 530, 180 Himes, Mortland v. 8 Pa. St. 265, 129 HinsdiU v. Murray, 6 Vt. 136, 233 Hinkley, McCoUum v. 9 Vt. 143, 206 Hindman v. Langford, 3 Strobh. (So. Car.) 207, 51 Hinchman, Downey v. 25 Ind. 453, 44 Hinely v. Margaritz, 3 Pa. St. 428, 3 Section Hinton, Cutler v. 6 Rand. (Va.) 509, 64 I-Iinde v. Whitehouse, 7 East, 558, 76 Hinds V. Ingham, 31 lU. 400, 119 Hine, Stodt v. 45 Pa. St. 30, 49, 50 Hinkle, McMuUen v. 39 Miss. 142, 372 Hinkle, Stewart v. 1 Bond, 506, 9, 48 Hirsh, Ferguson v. 54 Ind. 337, 487 Hirst, Pease v. 10 Barn. & Cress. 122, 101, 120 Hitt, Humphrey v. 6 Gratt. (Va.) 509, 382 Hitchcock, Delaplaine v. 4 Ed- ward's Ch. 321, 27 Hitchcock V. Humlrey, 5 Man. & Gr. 559, 184, 172 Hitchcock V. Humfrey, 6 Scott, N. R. 540, 134, 172 Hitchcock V. Lukens, 8 Port. (Ala.) 333, 49 Hitchcock, Pritchard v. 6 Man. & Gr. 151, . 290 Hixon, Hetherington v. 46 Ala. 297, 6 Hoad V. Grace, 7 Hurl. & Nor. 494, 70, 184 Hoag, Viele v. 24 Vt. 46, 209, 210 Hobson ». Base, Law Rep. 6 Chan. Appl. Cas. 792, 219 Hobson V. Hobson's Exr. 8 Bush (Ey.) 665, 516 Hobson, Johnson v. 1 Littell (Ky.) 814, 105 Hobson, Jones v. 3 Randolph (Va.) 488, 499 Hobbs, Craig v. 44 Ind. 363, 354 Hobbs, Hatch «. 12 Gray, 447, 134 Hobbs, Herbert v. 3 Stew. (Ala.) 9, 206, 209 Hobbs V. Middleton, 1 J. J. Marsh. (Ky.) 176, 494, 496, 532 Hobbs V. Rue, 4 Pa. St. 848, 330 Hoboken v. Harrison, 1 Vroom (N. J.) 73, 12, 31 Hobart, Lampson ». 28 Vt. 700, 55 Hobart, Sampson v. 28 Vt. 697, 50 Hoblitzell, Lewis v. 6 GiU & Johns. (Md.) 259, 84 Hocker v. Wood's Exr. 33 Pa. St. 466, 124 Ixxvi TABLE OF OASES. Section Hoch, Weiler v. 25 Pa. St. 525, 206 Hodenpuyl, Porter v. 9 Mich. 11, 800 Hodson, Morse v. 5 Mass. 314, i2 Hodgepeth, Adams v. 5 Jones Law (Nor. Car.) 327, 438 Hodgson V. Anderson, 5 Dow. & %. 735, 52, 53 Hodgson V. Anderson, 3 Bam. & Ores. 842, 52, 53 Hodgson V. Hodgson, 2 Keen, 704, 22, 383 Hodgson V. Shaw, 3 Mylne & Keen, 183, 273, 279 Hodges V. Armstrong, 3 Dev. Law (Nor. Car.) 253, 194 Hodges V. Gewin, 6 Ala. 478, 321 Hodges V. Hall, 29 Vt. 209, 46 Hodges, Stokes v. 11 Ricli. Eq. (So. Car.) 135, 25 Hodges, Whitfield v. 1 Mees. & Wels. 679, 425 Hodges. Whitfield v. 2 Gale, 127, 425 Hodge, Robinson v. 117 Mass. 222, 496 Hodge, Turley v. 3 Humph. (Tenn.) 73, 35, 154 Hoesback, McGovern v. 53 Pa. St. 176, 108 Hoey V. Ja,rman, 39 New J§r. Law (10 Vroom) 523, 78, 82 Hoe's Case 5, Coke, 70 b. 440 Hoe, Steele v. 14 Adol. & EU. N. S. 431, 72 Hoffman v. Bechtel, 52 Pa. St. 190, 85 Hoffmann v. Schwaebe, 33 Barb. (N. Y.) 194, 217 Hogshead v. Williams, 65 Ind. 145, 208 Hoge, Isett v. 2 Watts (Pa.) 128, 84 Hogaboom v. Herrick, 4 Vt. 131, 205, 206, 208, 211 Holbrow V. Wilkins, 1 Bam. & Cress. 10 Id. 2 Dow. & Ey. 69, 172 Hohenthal, Turnure v. 4 Jones & Spencer (N.-Y.) Holloman d. Langdon, 7 Jones Law (Nor. Car.) 49, 460 HoUiman v. Carroll, 27 Texas, 23, 484 Hollister v. Davis, 54 Pa. St. 508, '203, 287 Section Hollingsworth v. Floyd, 2 Har. & Gill (Md.) 87, 266 Holhngsworth, Hughes v. 1 Mui-- phy (Nor. Car.) 146, 438 Hollingsworth, Hickman v. 17 Mo. 475, 510 Hollingsworth ». Tanner, 44 Ga. 11, 374 HoU V. Hadley, 4 Neville & Man. 515, 350 Holcomb, Eeed v. 31 Ct. 360, 53 Holt V. Bodey, 18 Pa. St. 207, 378 Holt, Moore v. 10 Gratt. (Va.) 284, 88 Holt V. McLean, 75 Nor. Car. 347, 142 Holland v. Bouldin, 4 T. B. Mon. (Ky.) 147, 437 Holland v. Hoyt, 14 Mich. 2-38, 76 Holland v. Johnson, 51 Ind. 346, 370 Holland, Scroggin v. 16 Mo. 419, 359 Holland v. Teed, 7 Hare, 50, 98 Holden, Ruggles v. 3 Wend. 216, 206 Holden v. Tanner, 6 La. An. 74, 15 Holbrook, Howard v. 9 Bosw. (N. Y.) 237, 70 Holandsworth v. Commonwealth,- 11 Bush, 617, 4 Hollier, Eyre v. Lloyd & Goold, (Temp. Plunkct) 250, 25, 338 Holly, Cornwell v. 5 Richardson Law (So. Car.) 47, 310 Holly, Wallace v. 13 Ga. 389, 489 HoUinsbee v. Ritchey, 49 Ind. 261, 194 Holmes, Commonwealth v. 25 Gratt. (Ta.) 771, 324, 469 Holmes v. Day, 108 Mass. 563, 242 Holmes, Dillon v. 5 Nebraska, 484, 208 Holmes, Hawkins v. 1 P. Wms. 770, 75 Holmes, Kinchelse v. 7 B. Mon. (Ky.)5, 167,158 Holmes v. Knights, 10 New Hamp. 175, 46 Holmes v. Mitchell, 7 J. Scott, (N. S.) 361, 67 Holmes v. Mackrell, 3 Com. B. (N. S.) 789, 75 Holmes v. Steamer Belle Air, 5 La. An. 523, 404 Holmes, Sidney Road Co. v. 16 Up. Can. Q. B. R. 268, 357 TABLE OF CASES. Ixxvii Section Holmes, Ten Eyck v. 3 Sandf. Ch. E. 428, 283 Holmes v. Weed, 24 Barb. (N. T.) 546, 187 Holyoke v. Adams, 1 Hun, N. Y. 223; Id. 13Bankr.Reg.414; Id. 59 New York, 223, 409 Hommell v. Gamewell, 5 Blackf. , (Ind.) 5, 181 Homer v. Savings Bank, 7 Ct. 478, 284 Homan, Owen v. 3 Macn. & Gor. 378, 200 Homan, Owen v. 13 Beavan, 196, 329 Hoppook, Grover v. 2 Dufcter (N. J.) 191, 214, 308 Hoppock, Herring v. 15 New York, 409, 423 Hopkirk 0. M'Conico, 1 Brocken- brough, 220, 813, 315 Hopewell v. Bank of Cumberland, 10 Leigh (Va.) 206, ^ 285 Hope V. Cast, cited in Sbirriff v. Wilks, 1 East, 53, 10 Hopkins, Conkey v. 17 Johns. 113, 46 Hopkins v. Farwell, 32 New Hamp. 425, , 289 Hopkins, Gardiner v. 5 Wend. 23, 51 Hopkins v. Spurlook, 2 Heisk. (Tenn.) 152, 206 Hopps, Chamberlain v. 8 Vt. 94, 14 Hood, State v. 7 Blackf. (Ind.) 127, 462 Hoover v. Morris, 3 Ohio, 56, 54 Hooker v. Gamble, 12 Up. Can. C. P. R. 512, 317 Hooks V. Branch Bank at Mobile, 8 Ala. 850, 392 THoops, Eneas ». 10 Jones & Span. (N. Y.)517, 170,330 Hoopes, Davis v. 33 Miss. 173, 120 Home, Christy's Admr. v. 24 Mo. 242, 504 Horsefield v. Cost, Addison (Pa.) 152, 195 Hoi-top, Taylor v. 22 Up. Can. C. P. R. 542, 339 Hord, Greathouse v. 1 Dana (Ky.) 105, 218 Homer, Burt v. 5 Barb. (N. Y.) 501, 32, 85 Section Homer v. Lyman, 4 Keyes (N. Y.) 237, 397 Homer v. Lyman, 2 Abb. Rep. Om. Cas. 899, 397 Horner, Neff v. 63 Pa. St. 827. 331 Horn V. Bray, 51 Ind. 555, 46 Horn, Mayor etc. of Wilmington V. 2 Har. (Del.) 190, 139 Horton v. Manning, 37 Texas, 23, 147 Horsey, Farmers' Bank v. 1 Har- rington (Del.) 514, 325 Horsey v. Graham, Law R. 5 Com. P. 9, 67 Horsey v. Heath, 5 Ohio, 853, 256 Horsey, Litler v. 2 Ohio, 209, 515 Hosea v. Rowley, 57 Mo. 857, 305 Hoskins, Bowen v. 45 Miss. 183, 239 Hossack, Underwood v. 38 111. 208, 7, 8, 147 Hotchkiss V. Barnes, 84 Ct. 27, 130, 131 Hotchkiss, Grant v. 26 Barb. (N. Y.) 63, 70, 82 Hotchkiss V. Lyon, 2 Blackf. (Ind.) 222, 518 Hotchkiss, Mosher v. 3 Abb. Rep. Omitted Cas. (N. Y.) 326, 70, 83 Hotchkiss, Mosher v. 2 Keyes, 589, 70,83 Hotchkiss, Perrine v. 58 Barb. (N. Y.) 77, 183 Houlditch V. Milne, 3 Esp. 86, 50, 51, 54 Hough V. Aetna Life Ins. Co. 57 111. 318, 82, 260 Hough, Roe v. 3 Salk. 14, 52 Houghton V. Matthews, 3 Bos. & Pul. 485, 57 Houghton, Straderu. 9 Port. (Ala.) 334, 206 House V. Fort, 4 Blackf. (Ind.) 293, 282 Houston, Bordon v. 2 Tex. 594, 29, 470 Houston V. Branch Bank atHunts- viUe, 25 Ala. 250, 276 Houston V. Dougherty, 4 Humph. (Tenn.) 505, 515 Houston V. Hurley, 2 Del. Ch. 247, 378 Howie, Royston v. 15 Ala. 309, 382 Ixxviii TABLE OF CASES. Section Houston, Spiers v. 4 Bligh (N. R.) 515, 98 Howlett, Staats v. 4 Denio, 559, 70 Howth, Flores v. 5 Texas, 329, 141 Howry, Miller v. 3 Pen. & Watts (Pa.) .374, 213 Howk, Brannan v. 1 Blackf. Ind. 892, 309 Howk, Kirkpatrick v. 80 III. 122, 520, 370 Howarth, Samuell v. 3 Merivale, 272, 209, 297 , Howes V. Martin, 1 Esp. 162, 46, 54 How V. KemlDall, 2 McLean, 103, 35 How, Stilwell V. 46 Mo. 589, 225 Howell, Camp. v. 37 6a. 312, 309 Howell V. Cobb, 2 Cold. (Tenn.) 104, 192 Howell V. Jones, 1 Comp. Mees. & Eos. 97, 317 Howell V. Jones, 4 Tyrwh. 548, 317 Howell V. Lawrenceville Mfg. Co. 31 Ga. 663, 328 Howell V. Reams, 73 Nor. Car. 391, '269 Howell, United States v. 4 Wash- ington, 620, 313 Howell, Williamson v. 4 Ala. 693, 532 Howard, Carr v. 8 Blackf. (Ind.) 190, 208 Howard v. Coshow, 33 Mo. 118, 58 Howard, Crawford v. 9 Ga. 314, 444, 487 Howland, Douglass v. 24 Wend. 35, 68, 70, 524 Howland, More v. 4 Denio, 264, 81 Howard, Case v. 41 Iowa, 479, 165, 318 Howard v. Clark, 36 Iowa, 114, 311 Howard, Cox v. 8 Blackf. (Ind.) 190, 327 Howard v. Holbrook, 9 Bosw. (N. T.) 237, 70 Howard, Railroad Company v. 7 Wall. 392, 3 Howe, Harman v. 27 Gratt. (Va.) 676, 350, 415 Howe V. Mason, 12 Iowa, 202, 480 Howe t>. Nickels, 22 Me. 175, 157, 163, 174 Section Hoyt, Holland v. 14 Mich. 238, 76 Hoy». Branihall, 4 C. E. Green (N. J.) 563, 21 Hoy, Stevenson v. 43 Pa. St. 191, 10 Hozier, Peck v. 14 Johns. 346, 431 Hubert, Allen v. 49 Pa. St. 259, 1 Hubbard, Babcock v. 2 Ct. 536, 178 Hubbard, Blaine v. 4 Pa. St. 183, 326 Hubbard, Curtis v. 6 Met. (Mass.) 186, 337 Hubbard v. Gurnev, 64 New York, 457, 17, 316 Hubbell V. Carpenter, 5 New York, 171, 123 Hubble, Murphy v. 2 Duvall (Ky.) 247, 349 Hubbell, Thomas v. 15 New York, 405, 524 Hubbell, Turner v. 2 Day (Conn.) 457, 40 Huber v. Steiner, 2 Scott, 304, 38 Hubert v. Turner, 4 Scott (N. R.) 486, 75 Hubert v. Moreau, 12 Moore, 216, 75 Huddestone v. Briscoe, 11 Vesey, 583, , 66, 75 Hudson, Archer v. 7 Beavan, 551, 345 Hudson, Hart v. 6 Duer (N. Y.) 294, 316 Hudson V. Inhabitants of Wins- low, 6 Vroom, (N. J.) 437, 32 Hudson, Penniman v. 14 Barb. (N. Y.) 579, ' 85 Hudson, Wallace v. 37 Tex. 456, 22 Hudspethi, Spratlin v. Dudley (Ga.) 155, 91 Huey, Henderson Admr. ». 45 Ala. 275, 372 Huey V. Pinney, 5 Minn. 310, 205, 208, 352 Huff, Bucklen v. 53 Ind. 474, 298 Huff V. Cole, 45 Ind. 300, 308, 331 Huffman v. Hulbert, 13 Wend. 377, 206 Huffman v. Hulbert, 13 Wend. 375, 296 Hugely, Sullivan «. 48 Ga. 486, 296 Huggins, Cuthbert v. 21 Ala. 349, 458 Huggins, Davis v. 3 New Hamp. 231, 208 Huggins V. People, 39 HI. 241, 430, 434 TABLE OF OASES. Ixxix Section Hughes V. Gordon, 7 Mo. 297, 606 Hughes, Hairston v. 3 Munf. (Va.) 568, 494 Hughes V. HoUingsworth, 1 Murphy (Nor. Car.) 146, 438 Hughes, Knight v. Moody & Mai. 247, 247 Hughes V. Lawson, 31 Ark. 613, 49 Hughes V. Littlefield, 18 Mo. 400, 107 Hughes, Looney v. 26 New York, 514, 474 Hulme V. Coles, 2 Simons, 12, 321 Hulett, Paris v. 26 Vt. 308, 282 Hulett i>. Soullard, 26 Vt. 295, 178, 187 Hnlbert, Heaton v. 3 Scam. (111.) '489, 33, 86 Hulbert, Huffman w. 13 Wend. 375, 206, 296 Hull, Ellis ». 23 Cal. 160, 404 Hull t). Sherwood, 59 Mo. 172, 243 Humble, Hawkins ». 5 Cold. (Tenn.) 531, 361 Humphrey^ Farmers and Mechan- ics Bank v. 86 Vt. 654, 95 Humfrey, Hitchcock v. 5 Man. & Gr. 559, 134, 172 Humfrey, Hitchcock v. 6 Scott (N. R.) 540, 134, 172 Humphrey v. Hitt 6 Gratt. (Va.) 509, 382 Humphrey, Pratt v. 22 Conn. 317, 58 Humphreys v. Crane, 5 Cal. 173, 296 Humphreys, Davies v. 6 Mees. & Wels. 153, 177, 178, 199, 251 Humphreys, Leggett v. 21 How. (U. S.) 66, 93 Humphreys, Noyes v. 11 Gratt. (Va.) 636, 55, 61, 64 Humphreys, State v. 7 Ohio, 224, 491 Huntingdon Bank, Burns v. 1 Pen. & Watts (Pa.) 395, 270 Hungerford, Seabury v. 2 Hill, 80, 150 Huntbach, Harris v. 1 Burrow, 378, 44 Huntress v. Patten, 20 Me. 28, 84, 202 Hunter's Adnir. v. Jett, 4 Band. (Va.) 104, 296, 299 Hunter, Bank of Toronto v. 4 Bos- worth (N. y.) 646, 262 Section Hunter v. Clark, 28 Texas, 159, 382 Hunter v. Dickinson, 10 Humph. (Tenn.) 37, 170 Hunter, Ferrell v. 21 Mo. 436, 354 Hunter v. Richardson, 1 Duval! (Ky.) 247, 275 Hunter v. United States, 5 Peters, 173, 377 Hunt V. Bate, Dyer, 272 (a), 9 Hunt V. Burton, 18 Ark. 188, 415 Hunt V. Bridgham, 2 Pick. 581, 120, 296 Hunt V. Brown, 6 Hill, 145, 74 Hunt, Bryan v. 4 Sneed, 543, 67 Hunt V. Chambliss, 7 Smedes & Mar. (Miss.) 532, 223, 226 Hunt V. Knox, 34 Miss. 655, 306, 308, 329 Hunt V. McConnell, 1 T. B. Monroe (Ky.)219, 105 Hunt V. Postlewait, 28 Iowa, 427, 309 Hunt i>. Roberts, 45 New York, '691, 114 Hunt V. Smith, 17 Wend. 179, 297 Hunt V. State, 53 Ind. 321, 355 Hunt V. United States, 1 Gallison, 32, 377, 474 Hunt's Bxr. Taylor v. 34 Mo. 205, 496 Huntington v. Harvey, 4 Conn. 124, 61 Huntington, Morse v. 40 Vt. 488, 320, 329 Huntington v. Wellington, 12 Mich. 11, 53, 59 Hurd, Shelton v. 7 Rhode Is. 403, 27, 209 Hurd V. Spencer, 40 Vt. 581, 370 Hurlbert, Heaton v. 3 Scam. (111.) 489, 86 Hurlburt, Newell v. 2 Vt. 851, 191 Hurlburt, Thayer v. 5 Iowa (Clarke) 521, 424 Hurley v. Brown, 98 Mass. 545, 67 Hurley, Houston v. 2 Del. Ch. 247, 878 Hurt, Watson o. 6 Gratt. (Va.) 633, 147 Hustis, Schofleld v. 9 Hun, 157, 497 Ixxx TABLE OF OASES. Section Huston's Appeal, 69 Pa. St. 485, 281 Hutchins, Gamage v. 23 Me. 565, 119, 168 Hutchins v. McCauley, 2 Dev. & Bat. Eq. (Nor. Car.) 399, 249 Hutchinson, Hendrickson v. 5 Dutcher (N. J.) 180, 17 Hutchinson, Mayo v. 57 Me. 546, 4 Hutchinson, McLaren v. 22 Cal. 187, 49, 52 Hutchinson, Springer v. 19 Me. 359, 35 Hutchcraft v. Shrout, 1 T. B. Mon. (Ky.) 206, 461, 491 Hutson V. Field, 6 Wis. 407, 73 Hutton V. Padgett, 26 Md. 228, - 68, 70 Button V. Williams, 35 Ala. 503, 76 Huxley, Norton v. 13 Gray, 285, 59 Huzzard v. Nagle, 40 Pa. St. 178, 531 Hyatt, Jarvis v. 43 Ind. 163, 305 Hyde, Blecker v. 3 McLean, 279, 97 Hyde, Smith v. 19 Vt. 54, 63, 116 Hyde, Smith v. 36 Vt. 303, 310 Hyman, Anderson v. 1 H. Black. 120, 64 Ide V. Churchill, 14 Ohio St. 372, 244, 296 Ide, Smith v. 3 Vt. 290, 68, 72 Ide V. Stanton, 15 Vt. 685, 66 Igei>. Bank of Mobile, 8 Port. (Ala.) 108, 313 Iglehart v. State, 2 Gill. & Johns. (Md.) 235, 532 lies, Bamford v. 3 Wels. Hurl. & Gor. 380, 142 Usley e. Jones, 12 Gray, 260, 172 Imlay, Pearl Street Congregation- al Society v. 23 Ct. 10, 374 Independent School District of Montezuma v. McDonald, 39 la. 564, 466 Inglis ». Macdougal, 1 Moore, 196, 126 Inglis, Morley v. 4 Bing. (N. C.) 58, 203 Inglis, Morley v. 5 Scott, 314, 203 tngraham v. Marine Bank, 13 Mass. 208, 468 Ingraham, Newell v. 15 Vt. 422, 61 Section Ingraham, Kane ». 2 Johns. Cas. 403, 126 Ingalls V. Dennett, 6 Greenl. (Me.) 79, 176 Ingham's Admrs. v. Combs, 17 Mo. 558, 458 Ingham, Hinds v. 31 111. 400, 119 Ingersoll, Nicholls v. 7 Johns. 146, 427 IngersoU v. Roe, 65 Barb. (N. T.) 346, 5 Inhabitants of Colerain v. Bell, 9 Met. (Mass.) 499, 468 Inhabitants of Wendell v. Fleming, 8 Gray, 613, 445 Inhabitants of New Providence v. MoEachron, 4 Vroom (N. J .) 339, 477 Inhabitants of New Providence McEaohron v. 6 Vroom (N. J.) 528, 477 Inhabitants of Township of Free- hold, Patterson ats. 38 New Jer. Law, 255, 468 Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258, 76 Inhabitants of Farmington J). Stan- ley, 60 Me. 472, 474, 476 Inhabitants of Orono v. Wedge- wood, 44 Me. 49, 447 Inkster ». First Natl. Bk. of Mar- shall, 30 Mich. 143, 208 In re Albrecht, 17 Bank Reg. 287, 409 In re Hewitt, 10 C. E. Green (N. J.) 210, 263 International Petroleum Co. Hanna v. 23 Ohio St. 622, 418 Irael v. Douglas, 1 H. Blackstone, 239, 52 Irick V. Black, 2 C. E. Green (N. J.) 189, 192, 204, 378, 379 Irish V. Cutter, 31 Me. 536, 35, 155 Irvine, Miller v. 1 Dev. & Bat. 103, 68 Irvine, Pierce v. 1 Minn. 369, 153 Irwin, Alford v. 34 Ga. 25, 430 Irwin V. Backus, 25 Cal. 214, 532 Irwin V. Helgenberg, 21 Ind. 106, 513 Irwin, McCormick's Adnir. v. 35 Pa. St. Ill, 260 Irwin, Pike v. 1 Sandf. (N. Y.) 14, 53, 60 TABLE OF CASES. Ixxxi Skotion. Irwin V. Sanders, 5 Terg. (Tenn.) 287, 397 Irwin, Sutton v. 12 Serg. & Rawle, 13, 10 Isaac V. Daniel, 8 Adol. & Ell. (N. S.) 500, 296 Isaac, Mayer v. 6 Mees. & Wela. 605, ' 78. 134 Mam, Craft v. 13 Ct. 28, 161, 174, 175 Isham, Gilbert v. 16 Ct. 525, 452 Isett V. Hoge, 2 Watts (Pa.) 128, 84 Isley, Moore v. 2 Dev. & Batt. Eq. (Nor. Car.) 372, 245 Ives V. Bank of Lansingburg, 12 Mich. 861, 370 Ivey, Johnson v. 4 Cold. (Tenn.) 608, 295 Ives, Payne v. 3 Dow. & Ryl. 664, 162 Ives, Willis v. 1 Sm. & Mar. (Miss.) 307, 18 Iveson, Other v. 3 Drewry, 177, 117 Jacob V. Kirk, 2 Moody & Rob. 221, 66, 67, 75 • Jacobs V. Hill, 2 Leigh (Va.) 393, 145, 525 Jacobs, Watson v. 29 Vt. 169, 48 Jacoby, Elbert v. 8 Bush (Ky.) 542, 463 Jacocks, Pagon v. 4 Dev. Law (Nor. Car.) 263, 233 Jack V. Morrison, 48 Pa. St. 113, 283 Jack ». People, 19 111. 57, 4 Jackson v. Adamson, 7 Blackf. i (Ind.) 597, 195 ' Jackson, Ellison v. 12 Cal. 542, 68 ' Jackson, Pletoher v. 23 Vt. 581, 245, 246, 247, 255 Jackson v. Griswold, 4 Hill (N.Y.) 522, 524, . Jackson, Jackson's Adrar. v. 7 Ala. 791, 6 Jackson v. Jackson, 7 Ala. 791, g Jackson v. Lowe, 1 Bing. 9, 66 Jackson, McKenzie v. 4 Ala. 230, 49 Jackson, Mississippi Co. v. 51 Mo. 23, 447 Jackson, Otto v. 35 Ills. 849, 31 F Section. Jackson v. Rayner, 12 Johns. 291, 49,52 Jackson, Reid v. 1 Ala. 207, 488 Jackson, Saunderson v. 2 Bos. & Pul. 238, 66, 75 Jackson, Saunderson r-. 3 Esp, 180, 66, 75 Jackson v. Van Dusen, 5 Johns, 144, ■ 75 Jackson's Admr. Commonwealth V. 1 Leigh (Va.) 485, 446 Jackson's Admr. v. Jackson, 7 Ala. 791, 6 Jacques, James v. 26 Texas, 320, 204 Jacques v. Fackney, 64 111. 87, 275 James, Baumann v. Law B. 3 Ch. App. 508, 67 James, Branch Bank a Mobile v. 9 Ala. 949, 17, 296 James v. Day, 37 Iowa, 164, 24 James v. Jacques, 26 Texas, 320, 204 James v. Long, 68 Nor. Car. 218, 124 James v. Patten, 8 Barb. (N. Y.) 344, 75 James, Smith v. 1 Miles (Pa.) 162, 190 James, Thurston v. 6 Rhode Is. 103, 320 James v. Williams, 3 Nev. & Man. 196, 68, 71 James v. Williams, 5 Bam. & Adol. 1109, 71 Jameson v. Kelly, 1 Bibb. (Ky.) 479, 443 Janes v. Scott, 59 Pa. St. 178, 82, 84 Jansen, People v. 7 Johns. 332, 209, 474 Janvrin, Zollar v. 49 New Hamp. 114, 409 Jarman ». Algar, 2 Car. & P. 249, 56 Jarman, Hoey v. 39 New Jer. Law (10 Vroom) 523, 78, 82 Jarman v. Wiswall, 9 E. C. Green (N.J.) 267, 116 Jarratt ». Martin, 70 Nor. Car. 459, 121 Jarvis v. Hyatt, 43 Ind. 163, 305 Jarvis v. WiUrins, 7 Mees. & Wels. 410, 70 ixxxii TABLE OF OASES. Section Jasper, Bell's Admr. v. 2 Ired. Eq. (Nor. Car.) 597, 222, 252 Jasper County v. Shanks, 61 Mo. 332, 513 Jay, Wuff V. Law Rep. 7 Queen's B. 756, 386, 389 Jeffers, De Cottes v. 7 Florida, 284, 193 Jeffers v. Johnson, 1 Zabriskie (N. J.) 73, 191 Jefferson County v. Slagee, 66 Pa. St. 202, 63 Jefferson, Tenuell ». 5 Harrington (Del.) 206, 213 Jeffries, Sweet Admr. 48 Mo. 279, 277 Jamison v. Cozens, 3 Ala. 636, 405 Jemison v. Governor, 47 Ala. 390) 383 Jenness v. Cutler, 12 Kan. 500, 22, 310 Jenness v. True, 30 Me. 438, 116 Jennings v. Sledge, 3 Kelly (Ga.) 128, 437 Jennings, State v. 10 Ohio St. 73, 525 Jennings, Thomas o. 5 Smedes & Mar. (Miss.) 627, 147 Jennings, Woolley v. 5 Bam. & Ores. 165, 134 Jennison v. Parker, 7 Mich. 355, 384 Jenkins v. Clarkson, 7 Ohio, 72, 208, 298, 306 Jenkins, Cooper v. 32 Beavan, 337, 267 Jenkins, Dillingham v. 7 Smedes & Mar. (Miss.) 479, 359 Jenkins, Gray v. 24 Ala. 516, 496 Jenkins, Kelty ». 1 Hilton (N.T.) 73, 316 Jenkins v. McNeese, 34 Texas, 189, 378 Jenkins v. National V. B. of Bow- doinham, 58 Me. 275, 385 Jenkins, People v. 17 Cal. 500, 29 Jenkina v. Reynolds, 6 Moore, 86, 68 Jenkins v. Reynolds, 3 Broderip & Bing. 14, 68, 71 Jenkins, Roberts v. 19 La. (Curry) 453, 17 Jenkins v. Robertson, 2 Drewry, 351, 27 Section Jenkins v. Skillern, 5 Yetger (Tenn.) 288, 404 Jenkins, Wilde v. 4 Paige, 481, 23 Jenyes, Thornton v. 1 Man. & Gr. 166, '^2 Jephson v. Maunsell, 10 Irish Eq. Rep. 132, 389 Jephson v. Maunsell, 10 Irish Eq. Rep. 38, 389 Jerome, Casoni «. 58 New York, 315, 353, 496 Jordin v. Loftin, 13 Ala. 547, 349 Jeter, Gilder v. 11 Ala. 256, 309 Jeter, Taylor v. 23 Mo. 244, 371 Jett, Hunter's Admrs. v. 4 Rand. (Va.) 104, 296, 299 Jevons, Edwards v. 8 Man. Gr. & Scott, 436, 70, 72 Jewett V. Crane, 35 Barb. (N. Y.) 208, 216 Jewell, Heeter «. 6 Bush (Ky.) 510, 487 Jewell, Willace v. 21 OHo St. 163, 332 Joel, Cooper v. 1 De Gex, Fish & Jo. 240, 107 Johns V. Harrison, 20 Ind. 317, 333 John V. Johns, 16 Ala. 454, 227, 228, 247 Johns V. Race, 18 La. An. 105, 426 Johns ». Reardon, 11 Md. 465, 22, 198 Johns, Woodson v. 3 Munf. (Va.) 230, 412 Johnston, Ashby v. 23 Ark. 163, 392 Johnston v. Chapman, 3 Penn. & Watts (Pa.) 18, 84, 85 Johnston v. Gwathney, 2 Bibb (Ky.) 186, 443 Johnston, Hill v. 3 Ired. Eq. (Nor. Car.) 432, 75 Johnston v. Mills, 25 Texas, 704, 84 Johnston v. NichoUs, 1 Man. Gr. & Scott, 251, 70 Johnston, Snevily v. 1 Watts & Serg. 307, 7 Johnston v. Thompson, 4 Watts (Pa.) 446, 306 Johnson, Bank at Decatur v. 9 Ala. 621, 891 TABLE OF OASES. Ixxxiii Section Johnson v. Boyer, 3 Watts (Pa.) 376, 425 Johnson v. Brown, 51 Ga. 498, 97 Johnson i>. Clendenin, 5 Gill & Johns. (Md.) 463, ' 431 Johnson, Commonwealth v. 5 Gush. 464, 427 Johnson v. Commonwealth, 1 Duv. (Ky.) 410, 4 Johnson, Croft v. 5 Taunt. 319, 425 Johnson, Crofts v. 1 Marshall, 59, 296 Johnson v. Dodge, 17 111. 433, 76 Johnson v. Dodgsou, 2 Mees. & Wels. 653, 66, 75 Johnson v. Flint, 34 Ala. 673, 400 Johnson, Foster v. 5 Vt. 60, 253 Johnson v. Fuquay, 1 Dana (Ky.) • 514, 501 Johnson v. Gilbert, 4 Hill, 178, 53 Johnson, Henderson v. 6 Ga. 390, 68 Johnsons. Hacker, 8 Heisk. (Tenn.) 388, 324 Johnson v. Hobson, 1 Littell (Ky.) 314, 105 Johnson, Holland v. 51 Ind. 346, 870 Johnson v. Ivey, 4 Cold. (Tenn.) 608, 295 Johnson, Jeflfers v. 1 Zabriskie (N. J.) 73, 191 Johnson, MoCord ». 4 Bibb (Ky.) 531, 514 Johnson v. McGruder, 15 Mo. 365, 76 Johnson v. Mills, 10 Gushing, ' 503, 295 Johnson v. Nichols, 10 Conn. 192, 66,67 Johnson v. Planters' Bank, 4 Smedes & Mar. (Miss.) 165, 392 Johnson, Prathere. 3 Harr. & Johns. (Md.) 487, 179 Johnson, Riley v. 8 Ohio, 526, 353 Johnson, Sebastian v. 2 Duvall (Ky.) 101, 13 Johnson v. Searcy, 4 Terg. (Tenn.) 182, 296 Johnson v. Shepard, 35 Mich. 115, 83 Johnson, Stallings v. 27 Ga. 564, 307 Johnson, Stansfield v. 1 Esp. 101, 76 ifohnson. Starry v. 32 Ind. 438, 383 Section Johnson, South Carolina Society v. 1 McCord Law (So. Car.) 41, 139 Johnson, TVeasurers v. 4 McCord Law (So. Car.) 458, 377 Johnson, Taylor v. 17 Ga. 521, 361, 485, 531 Johnson's Admrs. v. Vaughn, 65 111. 425, 238, 256 Johnson, Ward v. 6 Munf. (Va.) 6, 325 Johnson v. Weatherwax, 9 Kansas 75, 357, 405 Johnson v. Wliitchoctt, 1 RoU. Abr. 24 pi. 33, 8 Johnson v. Wilmarth, 13 Met.' (Mass.) 416, 173 Johnson, Wright v. 8 Wend. 512. 345 Johnson v. Zink, 51 New York, 833, 24 Jones, Adams v. 12 Peters, 207, 67, 157 Jones, Allen v. 8 Minn. 202, 286 Jones, Andrews v. 10 Ala. 400, 38 Jones V. Blanton, 6 Ired. Bq. (Nor. Car.) 115, 232, 252, 255, 461 Jones V. Brown, 11 Ohio St. 601, 315 Jones, Board of Supervisors of Jef- ferson Co. 19 Wis. 51, 476 Jones V. Bullock, 3 Bibb (iCy.) 467, 378 Jones V. Bradford, 25 Ind. 305, 250 Jones, Brainard v. 18 New York, 35, 93 Jones, Chaffee v. 19 Pick, 260, 151, 223, 252, 257 Jones V. Childs, 8 Nevada, 121, ■ 190 Jones, Choteau v. 11 111. 300, 177 Jones V. Council Bluffs Bank, 84 ' 111. 313, 53, 63 Jones V. Cooper, 1 Cowp. 227, 61 Jones V. Crosthwaite, 17 Iowa, 393, 128 Jones V. Davids, 4 Russell, 277, 273 Jones, Davis Sewing Machine Co. V. 61 Mo. 409, 164 Jones, Dolby v. 2 Dev. Law. (Nor. Car.) 109, 394 Jones V. Doles, 3 La. An. 588, 524 Jones V. Fleming, 15 La..An. 522, 17 Jones, Fishbum v. 37 Ind. 119, 848 Jones V. Fitz, 5 New Hamp. 444, 231 Jones, Goode v. 9 Mo. 866, 155 IxxxiT TABLE OF CASES. Section Jones V. Goodwin, 39 Cal. 493, 148 Jones V. Greenlaw, 6 Cold. (Tenn.) 342, 83 Jones V. Hagler, 6 Jones, Law (Nor. Car.) 542, 126 Jones V. Hardesty, 10 Gill & Johns. 404, 58 Jones, Headles, Admr. v. 43 Mo. 235, 317 Jones V. Hobson, 3 Eandolph, (Va.) 483, 499 Jones, Howell v. 4 Tyrwh. 548, 317 Jones, Howell v. 1 Comp. Mees. & Eos. 97, 317 Jones, Ilsley v. 12 Gray, 260, 172 Jones, John v. 16 Ala. 454, 228, 247 Jones V. Joyner, 8 Ga. 562, 185 Jones V. Keer, 30 Ga. 93, 350 Jones V. Knox, 46 Ala. 53, 126 Jones, Lee v. 14 J. Scott (N. S.) 386, 867 Jones, Lee v. 17 J. Scott (N. S.) 482, 367 Jones V. Letcher, 13 B. Mon. (Ky.) 563,' 229 Jones, Lewis v. 4 Bam. & Cress. 506, 122 Jones, Matheson v. 30 Ga. 306, 17, 352 Jones, Mobile & G. R. R. Co. v. 57 Ga. 198, 53 Jones V. Palmer, 1 Doug. 379, 63, 68 Jones, Paul v. 1 Dum. & East, 579, 189 Jones V. Post, 6 Cal. 102, 66, 73 Jones, Purefoy v. Freeman's Ch. 44, 375 Jones V. Quinnipaick Bank, 29 Ct. 25, 282 Jones V. Read, 1 Humph. (Tenn.) 335, 515 Jones, Ross v. 22 Wallace, 576, 508 Jones V. Ryde, 5 Taunt. 488, 16 Jones, Sellers v. 22 Pa. St. 428, 384 Jones v. Scanland, 6 Humph. (Tenn.) 195, 445 Jones V. Shorter, 1 Kelley (Ga.) 294, 46 Jones, Shimer v. 47 Pa. St. 268, 207 Jones, Smith v. 7 Leigh (Va.) 165, 76 Jones, State v. 3 La. An. 9, 434 Section Jones V. Thayer, 12 Gray, 443, 121 Jones •». Tincher, 15 Ind. 308. 82 Jones V. Turner, 5 Littell (Ky.) 177, 121 Jones, United States v. 8 Peters, 399, 362 Jones, Vilas v. 1 New York, 274, 209, 310 Jones, Vilas v. 10 Paige Ch. R. 76, 809 Jones V. Whitehead, 4 Ga. 397, 1, 512 Jones V. Teargain, 1 Dev. Law (Nor. Car.) 420, 16 Jordan Admr. v. Adams, 7 Ark. (2 Eng.) 348, 182 Jordan ». Agawam Woolen Co. 106 Mass. 571, 394 Jordan v. Trumbo, 6 GiU & Johns. (Md.) 108, 296 Jordou V. Dobbins, 122 Mass. 168, 114 Josephi, Hayes v. 26 Cal. 535, 295 Joseph V. Heaton, 5 Grant's Ch. R. 636, 21, 276 Joslyn V. Eastman, 46 Vt. 258, 295 Joslyn V. Smith, 18 Vt. 853, 120, 296 Josselyn v. Ames, 3 Mass. 274, 153 Joyce, Joyce v. 1 Bush (Ky.) 474, 267 Joyner, Bank of Montpelier v. 83 Vt. 481, 94 Joyner, Daniel v. 3 Ired. Eq. (Nor. Car.) 618, 190 Joyner v. Cooper, 2 Bailey Law (So. Car.) 199, 15, 452 Joyner, Jones v. 8 Ga. 562, 185 Joyner, Pogue v. 6 Ark. (1 Eng.) 241, 189 Julian, Kiton v. 4 Ellis & Black. 854, 141 Julius, Pecker v. 2 Browne (Pa.) 81, 80, 117 Judah ■!>. Mieure, 5 Blackf. (Ind.) 171, ' 254, 257 Judah, Murray v. 6 Cowen, 484, 315 Judah, Zimmerman v. 13 Ind. 286, 347 Judah V. Zimmerman, 22 Ind. 888, 347 Judson, Decker v. 16 New York, 439, 29 Judson, Rindge v. 24 New York, 64, 133 Judge of Probate v. Heydock, 8 NewHamp. 491, 98 TABLE OP OASES. Ixxxv Section Judge of Wayne Circuit, Loh v. 26 Mich. 186, 514 Jung, Meiswinkle v. 20 Wis. 861, 810 Justices, Cameron v. 1 Kelly (Ga.) 86, 494 Justice, Cole v. 8 Ala. 793, 208 Justices, Dobbs v. 17 Ga. 624, 478, 485, 521 Justices V. Ennis, 5 Ga. 569, 442 Justices V. Selman, 6 Ga. 432, 394, 498 Justices V. Sloan, 7 Ga. 81, 494 Justices V. Woods, 1 Kelly (Ga.) g4, 467, 492 Kagy V. Trustees, etc. 68 111. 75, 467 Eaighn, Paulin v. 3 Dutcker (N. J.) 503, 226 Eaighn, Paulin v. 5 Dutcher N. J. 480, 235 Eaighn v. Puller 1 MoCarter (N. J.) 419, 328 Kaime, Supervisors of Omro v. 39 Wis. 468, 477 Kane v. Ingraham, 2 Johns. Cas. 403, 126 Eane, Van Reimsdyok v. 1 GaUison 0. C. 633, 53 Kannon v. Neely, 10 Humph. (Tenn.) 288, 168 Earing, O'Blenis v. 57 New York, 649, 245 Kasey, Lane v. 1 Met. (Ky.) 410, 13 Eastneru. Winstanley, 20 Up. Can. Com. P. R. 101, 78, 162 Eaufman v. Wilson, 29 Ind. 504, 504 Eay V. Allen, 9 Pa. St. 320, 159 Eay V. Groves, 6 Bing. 276, 135 Eay V. Groves, 3 Moore & Payne, 634, 135 Eean, Peer v. 14 Mich. 354, 288 Eeane v. Fisher, 10 La. An. 261, ' 91 Eearns, Emmott v. 5 Bing. N. C. 5-9, 73 Keams, Emmott v. 7 Scott, 687, 73 Eearns, Emmott v. 5 Bing. (N. C.) 559, 70 Eeames v. Montgomery 4 West Va. 29, 1, 147 Section Kearsley v. Cole, 16 Mees. & Wels. 128, 329 Keate v. Temple 1 Bos. & Pul. 158, 64 Keating, Simmons v. 2 Starkie, 876, 7 Keaton v. Cox, 26 Ga. 162, 82 Keaton's Distributees v. Campbell, 2 Humph. (Tenn.) 224, 502 Kee V. Campbell, 27 Mich. 497, 229 Keegan, Whelan v. 7 Irish Com. Law R. 544, 133 Keeland, Evans v. 9 Ala. 42, 201 Keen, Augew v. 1 Mee^s. &. Wels. 390, 144 Keen, Keyser v. 17 Pa. St. 327, 357 Keer v. Clark, 11 Humph. (Tenn.) 77, 240 Keer, Jones v. 30 Ga. 93, 350 Keifier, Duncan v. 3 Bin. (Pa.) 126, 194 Keily, In re, 9 Irish Ch. R. 87, 224 Keith V. Dwinnell, 88 Vt. 286, 134 Keith V. Goodwin, 31 Vt. 268, 46, 94, 223, 332 Keith, Ford d. 1 Mass. 139, 178, 185 Keller v. Rhoads, 39 Pa'. St. 513, 199 Kellar v. Williams, 10 Bush (Ky.) 216, 227, 395 Kellogg, Baker v. 29 Ohio St. 663, 503 Kellogg V. Dunn, 2 Met. (Ky.) 215, 158 Kellogg, Montgomery v. 43 Miss. 486, 163, 174 Kellogg!). Stockton, 29 Pa. St. 460, 111, 157, 158 Kelly, Carpenter v. 9 Ohio, 106, 235, 257 Kelly, Edwards v. 6 Maule & S. 204, 49,51 Kelly V. Pew, 18 Ohio, 441, 153 Kelly V. Gillespie, 12 Iowa, 55, 17, 809 Kelly V. Gordon, 3 Head (Tenn.) 683, 414 Kelly V. Henderson, 1 Pa. St. 495, 429 Kelly, Jameson v. 1 Bibb (Ky.) 479, 443 Kelly V. Matthews, 5 Ark. (Pike) 223, 505 Kelly, Ridgeway, Lapp & Schoales, Hill V. (Irish) 265, 263 Kelly V. State, 25 Ohio St. 567, 445, 467 Kelsey v. Hibbs, 13 Ohio St. 340, 55 Ixxxvi TABLE OF OASES. Section Kelty V. Jenkins, 1 Hilton (N. Y.) 73, 316 KembaU, How v. 2 McLean, 103, 35 Kemble, HiU v. 9 Cal. 71, 483, 487 Kemp V. Finden, 12 Mees. & Wels. 421, 247, 252, 253 Kemp, Rittenhouse v. 37 Ind. 258, 302 Kemmerer v. Wilson, 31 Pa. St. 110, 384 Kendig, Commonwealth v 2 Pa. 448, 14, 481 Kendriok v. Forney, 22 Gratt: (Va.) 748, 182, 273 Kendall, Wheat v. 6 New Hamp. 504, 19, 307 Kendall, Wheat v. 6 New Hamp. 504, 307 Kennaway v. Treleasan, 5 Mees. & Wels. 498, 70 Keniiett, Baker i>. 54 Mo. 82, 128 Kennedy v. Adams, 5 Harrington (Del.) 160, 429 Kennedy v. Carpenter, 2 Wharton (Pa.) 344, 117, 245 Kennedy v. Evans, 81 111. 258, 17, 309 Kennedy v. Goss, 38 New York, 330, 303 Kennedy v. Pickens, 3 Ired. Bq. (No. Car.) 147, 278 Kennedy, Pierce v. 5 Cal. 138, 148 Kennedy, Price v. 16 La. An. 78, 586 Kennedy, Zane v. 73 Pa. St. 182, 296 Kenning, AUan ». 2 Moore & Scott, 768, 132 Kenning, Allan v. 9 Bing. 618, 132 Kenningham v. Bedford, 1 B. Mon. (Ky.) 325, 809 Kenner v. Caldwell, Bailey Bq. Cas. (So. Car.) 149, 209 Kennebec Bank tJ. Turner, 2]Green- leaf (Me.) 42, 18 Kennebec Bank v. Tuckerman, 5 Greenl. (Me.) 130, 296, 305 Kent, Grafton Bank v. 4 New Hamp. 221, 17 Kent V. Matthews, 12 Leigh (Va.) 573, 205 Kent V. Mercer, 12 Up. Can. C. P. R. 30, 458 Section Kenworthy v. Schofield, 2 Bam. & Cres. 945, 76 Kenyon, Bastwood v. 11 Ad. & Ell. 438, 9, 58 Kenyon, Bastwood v. 3 Perry &> Dav. 276, 58, 77 Kephart, Whitoomb v. 50 Pa. St. 85, 48 Ker, Slawson v. 29 La. An. 295, 444 Kerr v. Baker, Warker (Miss.) 140, 17 Kerr v. Cameron, 19 Up. Can. Q. B. R. 366, 300 Kerr )). Shaw, 13 Johns. 236, 68 Kerney's Heirs, Kemey's Admr. v. 6 Leigh (Va.) 478, 118 Kemey's Admr. v. Kemey's Heirs, 6 Leigh (Va.) 478, 118 ' Kern, Eagles v. 5 Wharton (Pa.) 144, 680 Kems V. Chambers, 3 Ind. Eq. (Nor. Car.) 576, 238 Kercheval, Farmers & Mechanics Bank v. 2 Mich. 504, 134, 173, 346 Kershaw, Ordinary v. 1 McCarter, (N. J.) 527, 496 Kersha*, Perkins v. 1 HUl Eq. (So. Car.) 344, 270 Kershner, United States v. 1 Bond. 432, 294 Kesee, Bradley v. 5 Cold. (Tenn.) 223, 360 Ketchell v. Bums, 24 Wend. 456, 33 Ketchum, Williams v. 19 Wis. 231, 70 Ketchum v. Zeilsdorff, 26 Wis. 514, 420 Kettle, PoweU v. 1 Gilman (HI.) 491, 118 Kettlewell, Conolly v. 1 Gill(Md.) 260, 62, 64 Key, Heath v. 1 Younge & Jer. 484, 296 Keyes, Mead v. 4 B. D. Smith (N. Y.) 510, 48 Keyser v. Keen, 17 Pa. St. 327, 857 Kibler, Gilman v. 5 Humph. 19, 68 Kibourn, Martin v. 1 Central Law Jour. 94, 409 Kidd, Brown v. 34 Miss. 291, 194 Kidder v. Page, 48 New Hamp. 380, 217 TABLE OF CASES. Ixxxvii Section Kiersted, Harwood v. 20 111. 867, 9 Eillian v. Ashley, 24 Ark. 5il, 33, 147, 163 Kimball v. Comstook, 14 Gray, 508, 59 Kimball v. Newell, 7 Hill, 116, 44, 128 Kimball v. Roye, 9 Richardson Law (So. Car.) 295, 87 Kimball, Stx)ddard v. 6 Cush. 469, 854 Kimball, Stoddard w. 4 Cush, 604, 354 Kimble v. Cummins, 3 Met. (Ky.) 327, 184 Kincaid, Bursoii v. 3 Perm. & Watts. (Pa.) 57, 129 Kincaid v. Yates, 63 Mo. 45, 333 Kinohelse o. Holmes, 7 B. Mou. (Ky.) 5, 157, 158 King V. Baker, 7 La. An. 570, 448 King V. Baldwin, 2 Johns. Ch. R. 554, 205, 206 King V. BaJdwin, 17 Johns. 384, 206, 210 King V. Blackmore, 72 Pa. St. 347, 288 King, Carpenter v. 9 Met. 511, 17, 27, 211 King, Crawford v. 54 Ind. 6, 49 King, Pinley v. 1 Head (Tenn.) 123. 378 King, Gardners. 2Ired. Law (Nor. Car.) 297, 9, 112 King u. Harman's Heirs, 6 La. (Curry.) 607, 283 King V. Nichols, 16 Ohio St. 80, 458, 470 King, Oldershaw v. 2 Hurl. & Nor. 517, 70 King, Oldershaw v. 2 Hurl. & Nor. 520, 8 King V. Smith, 2 Leigh (Va.) 157, 349 King )). State Bank, 9 Ark. (4 Eng.) 185, 296 Kingham, Reader v. 13 Com. B. (J. Scott) N. S. 344, 58 Kinloch v. Brown, 1 Rich. (So. Car.) 223, 64 Kinloch v. Brown, 2 Spears Law, (So. Car.) 284, 61 Section Kingman, Grocers' Bank v. 16 Gray, 473, 12i 343 Kinney, Hausberger's Admr. v. 13 Gratt. (Va.) 511, 305 Kinney, Smith v. 6 Neb. 447, 189 Kimmey, Pawcetts v. 33 Ala. 261, 275 Kingsland, PfeifiFer v. 25 Mo. 66, 6 Kingsley v. Balcombe, 4 Barb. (N. y.) 131, 47, 55 Kingsley, Dayis v. 13 Ct. 285, 519 Kingsley, Farmers' & Mechanics' Bank v. 2 Douglass (Mich.) 379, 121 Kingsbury v. Westfall, 61 New York, 356, 79, 90, 339 Kingsbury v. Williams, 53 Barb. (N. Y.) 142, 339 Kinsey v. McDearman, 5 Cold. (Tenn.) 892, 282 Kingston Mut. lua. Co. v. Clark, 33 Barb. (N. Y.) 196, 139 Kinyon v. Brock, 72 Nor. Car, 554, 85 Kirby o. Duke of Marlborough, 2 Maule & Sel. 18, . 135, 137 Kirby ». Studebaker, 15 Ind. 45, 166, 347 Kirby v. Taylor, Hopkins' Ch. R. 309, 123, 490 Kirby ». Turner, 6 Johns. Ch. R. 242, 123 Kirby, Wayne ». 2 Bailey Law (So. Car.) 551, 209, 825 Kirby, Whitaker v. 54 Ga. 277, 211 Kircher, Enoebel v. 38 111. 308, 834 Kirk, GriefF v. 17 La. An. 25, 393 Kirk, Jacob v. 2 Moody & Rob. 221, 66, 67, 75 Kirk, Sacramento v. 7 Cal. 419, 336 Kirkliam v. Marter, 2 Barn & Aid 613, 40 Kirkman v. Bank of America, 2 Cold. (Tenn.) 897, 214 Kirkman, Rice v. 3 Humph. (Tenn.) 415, 515 Kirkpatrick v. Howk, 80 111. 122, 370, 520 Kirkpatrick, Scully v. 79 Pa. St. 324, 428 Kirkpatrick, United States v. 9 Wheaton, 720, 474 Ixxxviii TABLE OF CASES. Section Kirkpatrick, Van Rensselaer v. 46 Barb. (N. T.) 194, 308 Kitcliens, Smith v. 51 Ga. 158, 432 Kiton V. Julian, 4 Ellis & Black. 854, ■ 141 Kittridge, McComb v. 14 Ohio, 348, 307 Ettredge, Ulen v. 7 Mass. 233, 76 Kittrell, Gates v. 7 Heiskell (Tenn.) 606, 84 Klapp, Klecknev «. 2 Watts & Serg. (Pa.) 44, 115 Klein v. Currier, 14 111, 237, 147, 149 Klein v. Mather, 2 Gilman (111.) 317, 252 Kleinhaus v. Generous, 25 Ohio, 667, 302 Kleiseri). Scott, 6 Dana (Ky.) 137, 280 Kliugensmith, Bank v. 7 Watts (Pa.) 523, 206 KHugensmith's Exr. Klingensniith V. 31 Pa. St. 460, 383 Klepper, Harsh ». 28 Ohio St. 200, 330 Klose, Snyder v. 19 Pa. St. 235, 352 Knapp V. Anderson, 7 Hun (N. Y.) 295, 409 Knapp, Brewer v. 1 Pick. 382, 90 Kneeland, People v. 31 Gal. 288, 335 Knepper, Wright v. 1 Pa. St. 861, 379 Knipf'er, Supervisors of Kewannee Co. V. 37 Wis. 496, 476 Kniffin, Mon-is v. 37 Bai-b. (N. T.) 336, 75 Knight V. Crockford, 1 Esp. 190, 75 Knight V. Fox, Morris (Iowa) 305, 113 Knight V. Hughes, Moody & Mai. 247, 247 Knight, Knight v. 16 New Hamp. 107, ' 155 Knight V. Whitehead, 26 Miss. 245, 22 Knights, Holmes v. 10 New Hamp. 175, 46 Knoebel v. Kircher, 33 lU. 308, 334 Knotts, Bank v. 10 Richardson Law (So. Car.) 543, 120, 173 Knotts V. Butler, 10 Richardson Eq: (So. Gar.) 143, 113, 259 Knox, Abercrombie v. 3 Ala. 728, 82 Knox, Hunt v. 34 Miss. 655, 806, 308, 329 Secticn Knox, Jones v. 46 Ala. S3, 126 Knox, Meliok v. 44 New York, 676, 110 Knox, Shewell v. 1 Dev. Law (Nor. Gar.) 404, 167 Knox V. Vallandingham, 13 Smedes & Mar. (Miss.) 526, 280 Knox Co. Bank v. Loyd's Admr. 18 Ohio St. 353, 95 Kock V. Block, 29 Ohio, St. 565, 186 Koch V. Melhorn, 25 Pa. St. 89, 86 Koening v. Steckel, 58 N. Y. 475, 288 Konitzky v. Meyer, 49 New York, 571, 184 Koontz, Nabb v. 17 Md. 283, 74, 128 Koppel, Wolff V. 5 Hill, 458, 57 Koppel, Wolff V. 2 Denio, 368, 57 Kountz V. Hart, 17 Ind. 329, 331 Krafts V. Creighton, 3 Richardson Law (So. Car.) 273, 186 Kramer v. Farmers' & Mechanics' Bank, 15 Ohio, 258, 188, 193 Kramer & Rahm's Appeal, 37 Pa. St. 282 Kramph's Ex'x v. Hatz Exrs. 52 Pa. St. 525, 1, 529 Kreheval, Farmers' & Mechanics' Bank v. 2 Mich. 504, 313 Kreider, Greenawalt v. 3 Pa. St. 264, 207 Kritzer v. Mills, 9 Gal. 21, 17 Kruttschnitt v. Hauck, 6. Nevada, 163, 464 Krutz V. Stewart, 54 Ind. 178, 68 Kuhn V. Abat, 14 Martin (La.) 2 N. S. 168, 100 Kuns' Exr. v. Young, 34 Pa. St. 60, 128 Kupfer V. Spinhorst, 1 Kansas, 75, 517 Kuykendall, Barickman v. 6 Blackf. (Ind.) 21, 66 Kyle V. Proctor, 7 Bush (Ky.) 493, 839 Kyle V. Bostick, 10 Ala. 589, 309 Kyner, Kyner v. 6 Watts (Pa.) 221, 266 Labouchere, Wythes v. 3 DeGex & Jones, 593, 19, 365 Lack, Thompson v. 3 Man. & Gr. & Scott, 540, 888 TABLE OF CASES. Ixxxix Section Laoook, Campbell v. 40 Pa. St. 448, 84 Lacour, Grosserand v. 8 La. An. 75, 303 Lacy V. Lofton, 26 Ind. 324, 153 Lacy V. MoNeile, 4 Dow. & Ry. 7, 52 Lacy, Routon's Admr. v. 17 Mo. 399, 504, 512 Ladd V. Board of Trustees, 80 111. 233, 353 Ladd V. Brewer, 17 Kansas, 204, 417 Lafarge v. Halsey, 1 Bosw. (N. Y.) 171, • 203 LaFarge v. Herter, 8 Denio, 157, 27 LaFarge v. Herter, 11 Barb. (N. T.) 159, 27 Lafayette Bank, Lonsdale v. 18 Ohio, 126, 96, 167 Lafonta, ex parte, 2 Robinson (La.) 495, 427 Lagow, Governor v. 43 111. 134, 324, 336 Lahens, Fielden v. 6 Blatohford, 524, 470 Lahens, Pickersgill v. 15 Wallace, 140, 80, 117 Lainhart, BosweU v. 2 La. (Miller) 897, 443 Laing v. Lee, Spencer, 837, 49, 68 Laing, Tucker v. 2 Kay & Jobnson, 745, 212, 296 Lake v. Brutton, 8 De Gex, Macn. & Gor. 440, 267 Lake, Williams v. 2 Ell. & Ell. 349, 67 Lakeman, Mountstepben v. Law Rep. 7 Q. B. 196, 42, 63, 64 Lakeman, Mountstephen v. Ldw Rep. 2 Q. B. 196, 40 Lalla Bunseedhur v. Bengal Gov- ernment, 14 Moore's Indian Ap- peals, 86, 463 Lamb, Colemard v. 15 Wend. 829, 346 Lamb, Rolfe v. 16 Vt. 514, 110 Lambert, Eaton v. 1 Nebraska, 839, 182 Lamberton v. Windom, 18 Minn. 506, 384 Lamkin, Planters' Bank v. R. M. Charlton (Ga.) 29, 868 Lamp V. Smith, 56 Ga. 589, 436 Lampson v. Hobart, 28 Vt. 700, 65 Section Lamonte v. Ward, 36 Wis. 558, 424 Land, Pickett v. 2 Bailey Law (So. Car.) 608, 208 Lane, Barrows v. 5 Vt. 161, 153 Lane v. Burghart, 1 Adol. & BU. (N. S.) 933, 48 Lane, Davis v. 10 New Hamp. 156, 307 Lane ex parte, 1 De Gex 300, 48 Lane, Harrison v. 5 Leigh (Va.) 414, 463 Lane v. Kasey, 1 Met. (Ky.) 410, 13 Lane v. Levillian, 4 Ark. (Pike), 76, 172 Lane, Portage Co. Branch Bank v. 8 Ohio St. 405, 833 Lajie, Robinson v. 14 Sm. & Mar. (Miss.) 161, 48 Lane v. Sleeper, 18 New Hamp. 209, 188 Lane V. State, 27 Ind. 108, 461, 520, 522 Landis v. Curd, 63 Mo. 104, 218 Landis, York v. 65 Nor. Car. 585, 195 Landrum v. Brookshire, 1 Stewart, (Ala.) 252, 181 Lang V. Brevaxd, 3 Strob. Eq. (So. Car.) 59, 389 Lang, Brown v. 4 Ala. 50, 278 Lang V. Pike, 27 Ohio St. 498, 79, 398 Lang, Treasurers v. Bailey Law (So. Car.) 430, 144 Langford, Hindmaiu v. 3 Strobh, (So. Car.) 207, 51 Langford, Wilson v. 5 Humph. (Tenn.) 320, 809 Lang-ford's Exr. v. Perrin, 5 Leigh (Va.) 552, 228 Langdon, HoUoman v. 7 Jones Law (Nor. Cor.) 49, 460 Langdon v. Markle, 48 Mo. 357, 208 Lancaster, Vance v. 3 Haywood (Tenn.) 130, 183 Langan v. Hewett, 18 Smedes & Marsh. 122, 10 Lansdale v. Cox, 7 ,.T. B. Mon. (Ky.) 401, 220 Langley v. Adams, 40 Me. 125 485 Langley, Clements ». 2 Nevile & Man. 269, 240 xc TABLE OF OASES. Section Lansen v. Paxton, 22 Up. Can. C. P. R. 505, 225 Lannssee v. Barker, 3 Wheaton, 101, 114 Lapham v. Barrett, 1 Vt. 247, 70 Lapham, Chapin v. 20 Pick. 467, 41,44 Laqueer, Prosser v. 4 Hill (N. Y.) 420, 115 Laraway, West v. 28 Mich. 464, 4 Larehar, Bailey v. 5 Rhode Is. 630, 78 La Roque, Russell v. 13 Ala. 149, 285 La Roque, RusseU v. 11 Ala. 352, 120, 191 Laison v. Wyman, 14 Wend. 246, 62, 64 Lartigue v. Baldwin, 5 Martin (La.) 0. S. 193, 524 Lasher v. Williamson, 55 New York, 619, 203 Latham v. Brown, 16 Iowa, 118, 481 Latham v. Pagan, 6 Jones Law (Nor. Car.) 62, 459 Latouche v. Pallas, Hayes (Irish.) 450, 264 Lathrop v. Masterson, 44 Texas, 527, 359 Lathrop, Meyer v. 10 Hun (N. Y.) 66, 24 Lathrop,' Walker v. 6 Iowa, (Clarke,) 516, 199 Lattimore, Brown v. 17 Cal. 93, 460 Lauman v. Nichols, 15 Iowa, 151, 19 Laurason v. Mason, 3 Cranch, 492, 67 Laurens, Street v. 5 Richardson Eq. (So. Car.) 227, 464 Laurenson v. State, 7 Harr. & Johns. (Md.) 339, 445 Laughlin v. Ferguson, 6 Dana (Ky.) Ill, 405 Laub V. Rudd, 37 Iowa, 617, 94 Laval V. Rowley, 17 Ind. 36, 272 Law, Barry v. 1 Cranch (C. C.) 77, 75 Law, Briggs v. 4 Johns. Ch. 22, 352 Law V. East India Co. 4 Vesey, 824, 79, 371 Lawrie v. Scholefield, Law Rep. 4 Com. PL 622, 133 Lawson, Pairlee v. 5 Cowen, 424, 93 Section Lawson, Hughes v. 31 Ark. 613, 49 Lawson v. Wright, 1 Cox, 275, 254 Lawton v. Maner, 9 Rich. Law (So. Car.) 335, 157, 175 Lawton v. Maner, 10 Richardson Law (So. Car.) 323, 134, 315 Lawrence v. McCalmont, 2 How. (U. S.) 426, 6, 78 Lawrence, Middlesex Manf. Co. v. 1 Allen, 339, 143 Lawrence v. Taylor, 5 Hill, 107, 76 Lawrence v. Walmsley, 12 J. Scott (N. S.) 799, 315, 350 Lay, Devinney v. 19 Mo. 646, 503 Laythoarp v. Bryant, 2 Bing. (N. C.) 755, 75 Lazarus, Gomez v. 1 Dot. Eq. (Nor. Car.) 205, 280 Lea, Dozier w. 7 Humph. (Tenn.) 520, 18 Leadley v. Evans, 9 Moore, 102, 140 Leary v. Cheshire, 3 Jones Eq. (Nor. Car.) 170, 233 Leake v. Ferguson, 2 Gratt. (Va.) 419, 268 Lean, Dodge v. 13 Johns. 508, 67 Leavanworth, Estate of, Michigan State Bank v. 28 Vt. 209, 114 Leavitt, Bank of SteubenviUe v. 5 Ohio, 208, 325 Leavitt, Lyon v. 3 Ala. 430, 363 Leavitt v. Savage, 16 Me. 72, 327 Le Baron, United States o. 19 How- ard (U. S.) 73, 450 Lebanon Nat. Bank, Graves v. 10 Bush (Ky.) 23, 367 Lecat V. Tavel 3 McCord, 158, 68, 73 Le Cerf, State v. 1 Bailey Law fSo. Car.) 410, 426 Leckie v. Scott, 10 La. (5 Curry) 412, 11 Ledbetter, Bullard v. 5 The Re- porter (Sup. Ct. Ga.) 231, 211 Ledbetter ». Torney, 11 Iredell Law (Nor. Car.) 294, 178 Ledoux V. Durrive, 10 La. An. 7, 232 Ledoux, Louisiana State Bank v. 3 La. An. 674, 146, 208, 369 Ledyard, Ohio Life Ins. Co. ». 8 Ala. 866, 283 TABLE OF OASES. XCI Section Ledyard, Saint v. U Ala. 244, 277 Lee V. Baldwin, 10 Ga. 208, 884 Lee V. Clarke. 1 HiU (N. Y.) 56, 29, 106, 524 Lee V. Dick, 10 Peters, 482, 157, 159 Lee V. Dozier, 10 Humph. (Tenn.) 447, 317 Lee, Feloh v. 15 Wis. 265, 292 Lee V. Fontaine, 10 Ala. 755, 49 Lee V. Griffin, 31 Miss. 632, 275 Lee i>. Highland Bank, 2 Sandf. ' Ch. E. 311, 361 Lee ■0. Jones, 14 J. Scott (N. S.) 386, 867 Lee V. Jones, 17 J. Scott (N. S.) 482, 367 Lee, Laing v. Spencer, 337, 68 Lee, McDaniel v. 37 Mo. 204, 243 Lee, New London Bank v. 11 Ct. 112, 218, 282 Lee, Raikes v. 3 Man. & Gr. 452, 68 Lee V. Rook, Moseley,' 318, 205 Lee V. Sewall, 2 La. An. 940, 317 Lee, Laing v. Spencer (N. J.J 337, 49 Lee V. State, 2 Kelly (Ga.) 137, 432 Lee, Sweet v. 3 Man. & Gr. 452, 75 Lee, Tapp v. 3 Bos. & Pul. 367, ,59 Leech v. Hill, 4 Watts (Pa.') 448, 147, 153, 173 Leeds v. Dunn, 10 New York, 469, 103 Leek, Parker o. 1 Stew. (Ala.) 523, 179 Leeman, O'Donnell ». 43 Me. 158, 66 Lees r. "Whitoomb, 5 Bing. 34, 71 Leet, People ». 13 111. 261, 269 Leffingwell v. Freyer, 21 Wis. 892, 21, 117 Leggett V. Humphreys, 21 How. (U. S.) 66, 93 Leggitt, Magee v. 48 Miss. 139, 266 Leibshultz, Scheid v. 51 Ind. 38. 15 Leigh V. Taylor, 7 Bam. & Cress. 491, 451 Leight, Fletcher v. 4 Bush (Ey.) 303, 357 Leitner, Aycock v. 29 Ga. 197, 437 Leland, Bank v. 5 Met. (Mass.) 259, 876 Leland v. Creyon, 1 McCord (So. Car.) 100, 61, 64 Section Leland, Wood v. 1 Met. (Mass.) 387, 259 Lemayne v. Stanley, 1 Freeman, 538, 75 Lemayne v. Stanley, 3 Levinz, 1, 75 Lemmon v. Box, 20 Tex. 329, 56 Lenox «. Prout, 8 Wheaton, 620, 382 Lenwell, Mendenhall v. 5 Blackf. (lud.) 12-5. 319 Leonard, Cory v. 56 New York, 494, 281 Leonard, Lumsden v. 55 Ga. 374, 378, 391 Leonard v. Mason, 1 Wend. 522, 53 Leonard, Pryor v. 57 Ga. 136, 109 Leonard v. Speidel, 104 Mass. 356, 407 Leonard v. Sweetzer, 16 Ohio, 1, 115 Leonard v. Vredenburgh, 8 Johns. 29, 6, 7, 9, 55, 68 Leper, Williams v. 2 Wils. 308; Id. 3 Burr. 1886, 49, 50, 51, 54 Lerned v. Waunemacher, 9 Allen, 412, 66, 75 Lesher, Palethorpe v. 2 Rawle (Pa.) 272, 425 Leslie, Sill v. 16 Ind. 236, 149, 153 Letcher, Jones v. 13 B. Men. (Ky.) 563, 229 Letcher's Admr. v Yantis, 3 Dana (Ky.) 160, 512 Leuning, RatoUff v. 30 Ind. 289, 120 Levering, Rittenhouse v. 6 Watts & Serg. (Pa.) 190, 267, 276 Levi V. Mendell, 1 DuvaU (Ky.) 77, 35, 147, 153, 170 Levillian, Lane v. 4 Ark. (Pike) 76, 176 Levy Court, Ellicott v. 1 Harr. & J6hns. (Md.) 359, 447 Levy V. Hampton, 1 McCord Law (So. Car.) 145, 18 Levy, Hampton v. 1 McCord Eq. (So. Car.) 107, 389 Levy V. Merrill, 4 Greenl. 180, 68 Levy V. Taylor, 24, Md. 282, 415 Levy V. Wise, 15 La. An. 38, 11, 536 Lewellyn, Smeidel v. 3 Phila. (Pa.) 70, 86 XCll TABLE OF OASES. Section Lewis V. Armstrong, 47 Ga. 289, 395 Lewis, Beehervaise ®. Law Rep. 7 Com. PL 372, 203 Lewis V. Brackenridge, 1 Blaclrf. (Ind.) 112, 434 Lewis V. Bradley, 2 Ired. Law (Nor. Car.) 303, 160 Lewis V. Brewster, 2 McLean, 21, 172, 174 Lewis, 'Cake v. 8 Pa. St. 493, 189 Lewis, Dozier v. 27 Miss. 679 261 Lewis V. Dwight, 10 Ct. 95, 93, 182 Lewis, Gage v. 68 111. 604, 171, 351 Lewis, Gilman v. 15 Me. 452, 89 Lewis 0. Harbin, 5 B. Mon. (Ky.) 564, 296 Lewis V. Hoblitzell, 6 GUI & Jolina. (Md.) 259, 84 Lewis V. Jones, 4 Bam. & Cress. 506, ■ 122 Lewis, Maingay v. Irisli Rep. 3 Com. Law, 495, 315 Lewis, Maingay v. Irish Rep. 5 Com. Law, 229, 315, 316 Lewis, Mersereau v. 25 Wend. 243, 68 Lewis, Oxford Bank v. 8 Pick. 458, 305 Lewis V. Palmer, 28 New York, 271, 275 Lewis, Ramsey v. 30 Barb. (N. T.) 403, 235 Lewis V. Riggs, 9 Texas, 164, 503 Lewis, State v. 73 Nor. Car. 138, 29, 478 Lewis V. State, 41 Miss. 686, 429 Lewis, Way ». 115 Mass. 26, 526 Lewis, AVheeler v. 11 Vt. 265, 84, 85 Libenguth, Moser v. 2 Rawle (Pa.) 428, 118 Licbenthaler v. Thompson, 13 Serg. & Rawle (Pa.) 157, 206 Lichten v. Mott, 10 Ga. 138, 437 Liddard, Stead v. 1 Bingham, 196, 73 Liddard, Stead v. 8 Moore, 2, 70 Lidderdale v. Robinson, 2 Brocken- brough, 159, 269 Liebbrandt v. Mj^on Lodge, 61 lU. 81, 295 Likens, Mcintosh v. 25 Iowa 155, 92 Lil], Stadts. 9 East, 348, 70 Section Lilley v. Hewitt, 11 Price, 494, 77 Lilly, Oloott V. 4 Johns. 407, 428 Lilly V. Roberts, 58 Ga. 363, 375, 380 Lilliman, National Exchange Bank V. 65 New York, 475, 275 Lime Rock Bank v. Mallett, 34 Me. 547; Id. 42 Me. 349, 17, 119, 299, 304, 305, 312 Linn, United States v. 2 McLean, 501, 294 Lincoln, Merritt v. 21 Barb. 249, 206 Linenschmidt, Peters v. 58 Mo. 464, 507 Lining v. Giles' Exrs. 3 Brevard (So. Car.) 630, 494 Linnell, Miles v. 97 Mass. 298, 6 Linthorne, Rayner v. 2 Car. & Pa. 124, 76 Linnenfelser, Stagg v. 59 Mo. 336, 147 Linscott, Thompson v. 2 Greenl. (Me.) 186, 198 Linn County v. Parris, 52 Mo. 75, 358 Linn v. McClelland, 4 Devereux & Batt. Law (Nor. Car.) 458, 257 Liversidge v. Broadbent, 4 Hurl. & Nor. 603, 52 Livingston Bank of New York v. 2 Johns. Cas. 409, 86 Livingston v. Van Rensselaer, 6 Wend. 63, 233 Lindsay, GuH v. 4 Wels. Hurl, & Gor.'45, 48 Lindsay v. Parkinson, 6 Irish Law Rep. 124, 337 Linton, Dwight v. 3 Robinson (La.) 67, 153, 352 Linton, Yongue v. 6 Rich. Law (So. Car.) 275, 219 Lipscomb v. Grace, 26 Ark. 231, 189 Lipscomb v. Postell, 38 Miss. 476, 496 Liquidators of Overend, Gurney & Co. v. Liquidators of Oriental Financial Corporation, Law Rep. 7 Eng. & Irish Appl. Cas. 348, 19 Little, Cobb v. 2 Greenl. (Me.) 261, • 86 Little, Cummings v. 45 Me. 183,, 17, 20, 115, 870 TABLE OF OASES. XCIU Sectiok Little, Hayes v. 52 Ga. 555, 888 Little V. Little, 13 Pick. 426, 191 Little V. Nabb, 10 Mo. 3, 68 Little V. Commonwealtli, 48 Pa. St. 337, 108 Litler v. Horsey, 2 Obio, 209, 515 Littlefield, Hughes v. 11 Me. 400, 107 Littlefield, State v. 4 Blackf. (Ind.) 129, 480 Lloyd, Bullock v. 2 Car. and P. 119, 46 Lloyd, Montefiore v. 15 J. Scott, (N. S.) 203, 98 Lloyd, North British Ins. Co. v. 10 Wels. Hurl. & Gor. 523, 365 Lloyd, Wilson v. Law Rep. 16, Eq. Gas. 60, 23, 329 Lobb V. Stanley, 5 Queen's B. 574, 75 Loehrane v. Solomon, 38 Ga. 286, 385 Lockett, Drew v. 32 Beavan, 499, 276 Locknane v. Emmerson, 11 Bush (Ky.) 69, 381 Lockridge v. Upton, 24 Mo. 184, 504 Lockwood, Thompson v. 15 Johns. 256, 484 Lock V. Eeid, 6 Up. Can. Q. B. R. (0. S.) 295, 74 Locke V. MoVean, 33 Mich. 473, 103 Locke, Trefethen v. 16 La. An. 19, 175 Lodge, Heard v. 20 Pick. 53, 582 Loew V. Stooker, 68 Pa. St. 226, 127 Loftin, Jordin v. 13 Ala. 547, 349 Lofton, Lacy v. 26 Ind. 324, 158 Logan, Adams ». 27 Gratt. (Va.) 201, 319, 375, 380 Logan, Gregory 4). 7 Blackf. 112, 68 Loh V. Judge of Wayne Circuit, 26 Mich. 186, 514 Lombard v. Cobb, 14 Me. 222, 255 Lonime v. Sweeney, 1 Montana, 584, 420 Longden, Anderson v. 1 Wheaton 85, 459 Loney, Perley v. 17 Up. Can. Q. B. R. 279, 17 Longley v. Griggs, 10 Pick. 121, 225 Longpre v. White, 6 La. (Curry) 388, 502 Section London Assurance Co. v. Bold, 6 Adol. & EU. (N. S.) 514, 98 London Dock Co., Calvert •». 2 Keen, 638, 345 Lonsdale v. Brown, 4 Wash. 148, 8 Lonsdale «. Lafayette Bank, -.18 Ohio, 126, 96, 167 Long, Hassell v. 2 Maule & Sel. 363, . 139 Long, James v. 68 Nor. Car. 218, 124 Long, Morgan v. 29 Iowa, 434, 453 Long, Owen v. 112 Mass. 403, 8 Long, State v. 8 Iredell Law (Nor. Car.) 415, 483 Long V. United States Bank, 1 Freeman's Ch. R. (Miss.) 375, 405 Looney ». Hughes, 26 New York, 514, 474 Loomer v. Wheelwright, 3 San- ford's Ch. R. 135, 22 Loomia v. Newhall, 15 Pick. 159, 43,49 Loop V. Summers, 3 Rand (Va.) 511, 370 Loosemore v. Radford, 9 Mees. & Wels. 657, 190 Lord Harberton v. Bennett, Beatty (Ir. Ch.) 386, 21, 373 Lord, Bulkeleyw. 2 Starkie, 406, 107 Lord Bolton v. TomUn, 5 Adol. & Ell. 856, 38 Lord Arlington v. Menicke, 2 Saunders, 403, 138 Lord V. Staples, 23 New Hamp. 448, . 181 Loring, Moore v. 106 Mass. 455, 410 Loring, Fuller v. 42 Me. 481, 288 Loring, Sohier v. 6 Cush. 537, 329 Lossee v. Williams, 6 Lans, 228, 9 Lothrop V. Southworth, 5 Mich. 436, 534 Lott, Burroughs v. 19 Cal. 125, 252 Loucks, Saltenberry v. 8 La. An. 95, 451 Loud, Shaw v. 12 Mass. 447, 184 Lougee, National Pemberton Bank V. 108 Mass. 371, 149 Loughridge v. Bowland, 52 Miss. 546, 177 XCIV TABLE OF CASES. Section Louisville C. & L. R. R. Co., Pol- lard V. 7 Bush (Ky.) 697, 518 Louisville Manf. Co. v. Welch, 10 How. (U. S.) 461, 103, 173, 174 Louisiana State Bank v. Orleans Navigation Co. 3 La. An. 294 3 Louisiana State Bank v. Ledoux, 3 La. An. 674, 146, 208, 369 Love, City of Keokuk v. 31 Iowa, 119, 261, 266, 278 Love's Case, 1 Salk. 28, 50, 51, 58 Lovell, Bellows v. 5 Pick. 307, 381 LoveU, Smith v. 2 Montana. 332, 480 Loveland u. Shepard, 2 Hill (N. T.) 139, 84 Lovett V. Adams, 3 Wend. 380, 350 Lovejoy, Shriver v. 32 Cal. 574, 17 Lovf V. Anderson, 41 loa. 476, 4 Low, Marsh v. 55 Ind. 271, 156 Low V. Smart, 5 New Hamp. 353, 233 Low, Stafford «. 16 Johns. 67, 162 Low, Stafford v. 20 111. 162, 434 Lowe V. Beokwith, 14 B. Mon. (Ky.) 160, 131, 163, 168 Lowe, Jackson v. 1 Bing. 9, 66 Lowell, Chase v. 7 Gray 33, 66 Lowing, Greenlee v. 35 Mich. 63, 420 Lowndes v. Chisholm, 2 McCord Eq. (So. Car.) 455, 263 Lowndes, Duncan v. 3 Camp. 478, 10 Lowndes v. Pinckney, 1 Richard- son's Eq. (So. Car.) 155, 232 Lowndes v. Pickney, 2 Strob. Eq. (So^ Car,) 44, 215 Lowndes, Reade v. 23 Beaven, 361, 26 Lowther, Parwell v. 18 111. 252, 67 Lowry v. Adams, 22 Vt. 160, 96, 174, 176 Lowry v. Lumbermen's Bank, 2 Watts and Serg. (Pa.) 210, 178 Lowry v. McKinney, 68 Pa. St. 294, 21 Loyd's Admr. Knox Co. Bank v. 18 Ohio St. 353, 95 Loyd V. McTeer, 33 Ga. 37, 484 Lucas, Barclay v. 3 Douglass, 321, 101 Lucas, Barclay v. 1 Durn. & East 291 note, 101 Section Lucas V. Chamberlain, 8 B. Mon. (Ky.) 276, 46 Lucas V. Curry's Exrs. 2 Bailey Law (So. Car.) 403, 496 Lucas, Farmers' & .Traders' Bank V. 26 Ohio St. 385, 296, 364 Lucas V. Governor, 6 Ala. 826, 630 Lucas V. Guy, 2 Bailey Law (So. Car.) 403, 267 Lucas V. Payne, 7 Cal. 92, 49 Lndewig, Warfield v. 9 Robinson (La.) 240, 296 Lucking's Admr. v. Gegg, 12 Bush (Ky.) 298, 185 Ludington, Gilhlan v. 6 West Va. 128, 506, 508 Ludlow V. Simond, 2 Caines' Cas. in Error, 1, 79, 345 Ludwick V. Watson, 3 Oreg. 256, 9 Lukens, Hitchcock v. 8 Por. (Ala.) 333, 49 Lumbermen's Bank, Lowry v. 2 Watts & Serg. (Pa.) 210, 178 Lumpkin v. Mills, 4 Ga. 343, 273 Lumsden v. Leonard, 55 Ga. 374, 378, 391 Luqueer v. Prosser, 1 HiU (N. T.) 256, 150 Leroux v. Brown, 12 Com. B 801, 38 Luse, Case v. 28 Iowa, 527, 87 Lutch, Wybrants v. 24 Texas, 309, 322 Lydall, Bardwell v. 5 Moore & Payne, 327, 286 Lydall, Bardwell v. 7 Bing. 489, 286 Lyde v. Barnard, Tyrwh. & Gr. 250, 59 Lyle, Robinson v. 10 Barb. (N. T.) 512, 226 Lyman, Horner v. 4 Keyes (N. T.) 2.37, 397 Lyman, Homer v. 2 Abb. Rep. Om. Cas. 399, 397 Lyman, Mallory v. 3 Pinney, (Wis.) 443, 170 Lyman v. Sherwood, 20 Vt. 42, 94 Lynch v. Colegate, 2 Harr. & Johns. (Md.) 34, 350 Lyndon v. Miller, 36 Vt. 329, 445 TABLE OF CASES. XCV Section Lyon V. Boiling, 9 Ala. 463, 270 Lyon, Hotchkiss v. 2 Blackf. (Ind.) 222, 518 Lyon V. Leavitt, 3 Ala, 430, 363 Lyon, Strong v. 63 New York, 172, 845 Lyons v. Miller, 6 Gratt. (Va.) 427, 16 Lyons, Young v. 8 Gill (Md.) 162, 252, 255, 256 Lysaght v. Walker, 2 Dow & Clark, 211, 70, 521 Lysaght v. Walker, 5 Bligli (N. R.) 1, 70, 72, 287, 521 Lytlis' Ex'rs. v. Pope's adm'r, 11 B. Mon. (Ky.) 297, 251 M. & M. Bank v. Evans, 9 West Va. 373, 296, 338 Mabbett, Mbaa Life Ins. Co. v. 18 Wis. 667, 367 Macon & Brunswick R. R. Co., Branch v. 2 Woods, 385, 282 Macdonald v. Bell, 8 Moore's Priv. Co. Cas. 315, ■ 392 Macdonald, Bonar v. 3 House of Lords Cases, 226, 342 Macdougal, Inglis v. 1 Moore, 196, 126 Macey v. Childress, 2 Tenn. Ch. R. (Cooper) 438, 47, 77 Mace, Wells v. 17 Vt. 503, 189 Mackrell, Holmes v. 3 Conib. B. (N. S.) 789, 75 Mackenzie v. Scott, 6 Bro. Pari. Cas. 280, 57 Mackay v. Dodge, 5 Ala. 388, 99 Maclean v. Dunn, 4 Bing. 722, 76 MacLean,. Gray v. 17 111, 404, 405 Macomb, Campbell v. 4 Johns. Ch. R. 534, 192 Macrory v. Scott, 5 Wels. Hurl. & Gor. 907, 54, 56 Madden, Rose v. 1 Kansas, 445, 17, 517 Maddox, McDougald v. 32 Ga. 63, 465 Madigan, Gunn v. 28 Wis. 158, 89 Magee ». Leggett, 48 Miss. 139, 266 Maggs V. Ames, 4 Bing. 470, 48 Section Magill, Bank of U. S. v. 1 Paine, 661, 344 Magness, Reynolds v. 2 Iredell Law (Nor. Car.) 26, 441 Magruder, Audi). lOCal. 282, 17,148 Mahon, State v. 8 Harrington (Del.) 568, 427 Mahaffy, Fink v. 8 Watts (Pa.) 384, 267 Mahurin v. Pearson, 8 New Ilamp. 539, 211 Main, Boice v. 4 Denio, 55, 487 Mariner's Bank v. Abbott, 28 Me. 280, 305 Mains v. Haight, 14 Barb. (N. Y.) 76, 82, 85 Maingay v. Lewis, Irish Rep. 3 Com. Law, 495, 815 Maingay v. Lewis, Irish Rep. 5 Com. Law. 229, 315, 316 Mallet V. Bateman, Law Rep. 1 C. P. 163; S. C. 16, J. Scott, N. S. 530, 60, 61 Mallett, Lime Rock Bank». 34 Me. 347; Id. 42 Me. 849, 17, 119, 299, 804, 805, 312 Mailing Union v. Graham, Law Rep. 5 Com. PI. 201, 343 Mallory v. Gillett, 23 Barb. (N. Y.) 610, 50 Mallory ». Lyman, 8Pinney (Wis.) 443, 170 Mallory v. Gillett, 21 New York, 412, 45 Malone, David v. 48 Ala. 428, 296 Malone, Stewart v. 5 Phila. 440, 53 Manchester Iron Manf. Co. v. Sweeting, 10 Wend. 163, 206 Mandlee, Trickett v. Sid. 45, 8 Mandigo v. Mandigo, 26 Mich. 349, 188 Mauer, Lawton v. 9 Rich. Law (So. Car.) 385, 157, 175 Mauer, Lawton e. 10 Rich. Law, (So. Car.) 323, 134, 315 Manhattan Gas Light Co. v. Ely, 39 Barb. (N. Y.) 174, 98 Manhaska County v. Ruan, 45 Iowa, 328, 478 XCVl TABLE OF OASES. Section Mauley, Simpson v. 2 Crompton & Jer. 12, 364 Manley, Simpson v. 2 Tyrew. 86, 364 Manly v. City Atchison, 9 Kansas, 358, 476 Mannon, Anderson v. 7 B. Mon. (Ky.) 217, 309 Manning, Bell v. 11 Grant's Oh. R. 142, 123 Manning, Horton v. 37 Texas, 23, 147 Manning v. Mills, 12 Up. Can. Q. B. R. 515, 96 Mann v. Blanchard, 2 Allen, 386, 59 Mann, Dye v. 10 Mich. 291, 179 Mann v. Eokford's Exrs. 15 Wend. 502, 170 Mann, Massie v. 17 Iowa, 131, 265 Mann, State v. 21 Wis. 684, 484 Mann, Thomas v. 28 Pa. St. 520, 207 Maun, Witherly v. 11 Johns. 518, 181 Mann, Wells v. 45 New York, 327, 9 Mann v. Yazoo City, 81 Miss. 574, 522 Mapes V. Sidney, Cro. Jac. 683, 8 Manrow v. Durham, 3 Hill, 584, 74 Manrow, Durham v. 2 New York, 533, 53 Manser, Hill v. 11 Gratt. (Va.) 552, 270 Manufacturing Co. v. Worster, 45 New Hamp. 110, 526 Manufacturers' & Mechanics' Bank V. Bank of Pennsylvania, 7 Watts & Serg. 335, 27 Manufacturers' Bank v. Billings, 17 Pick. 87, 295 Manufacturers' Bank v. Cole, 39 Me. 188, 95 Marberger v. Pott, 16 Pa. St. 9, 154 Marbury, Somerville v. 7 GUI & Johns. (Md.) 275, 881 March v. Putney, 56 New Hamp. 34, 170, 173 Marcy v. Crawford, 16 Conn. 549, 46 Marden, Anstey v. 1 Bos. & Pul. N. R. 124, 51 Marden, Thomburgh i: 33 Iowa, 380, 211 Marohant, Hawes v. 1 Cur. 136, 5 Margaritz, Hinely v. 3 Pa. St. 428, 3 Section Markle, Langdon, v. 48 Mo. 357, 208 Markell v. Eichelberger, 12 Md. 78, 188, 193 Marks, Sterns v. 35 Barb. (N. Y.) 565, 98 Marks' Sureties, United States ». 8 Wallace, Jr. 358, 516 Mariners' Bank v. Abbott, 28 Me. 280, IV Marine Bank, Ingraham v. 13 Mass. 208. 468 Marion v. Faxon, 20 Conn. 486, 60 MaiTett, Andrews v. 58 Me. 539, 316 Marshall v. Aiken, 25 Vt. 328, 27 Marshall, Executors of Baker v. 16 Vt. 522, 381 Marshall, McNairy v. 7 Humph. (Tenn.) 229, 476 Marshall, Williams v. 42 Barb. (N. Y.) 524, 9, 127 Marshall, Wilson v. 15 Irish Com. Law Rep. 466, 65 Marsh, Baxter v. 1 Yerg. (Tenn.) 460, • 515 Marsh v. Consolidation Bank, 48 Pa. St. 510, 17, 46 Marsh, Day, 18 Pick. 321, 106 Marsh, Forward v. 18 Ala. 645, 483 Marsh, French v. 29 Wis. 649, 82 Marsh v. Griffin, 42 Iowa, 403, 331 Marsh v. Low, S5 Ind. 271, 156 Marsh, Pace v. 1 Bing. 216, 70 Marsh, Pace v. 8 Moore, 59, 70 Mai-sh V. Pike, 10 Paige Ch. R. 595, 262 Marsh v. Pike, 1 Sandford'a Ch. R. 210, 24 Marsh, Sandilands v. 2 Bam. & Aid. 673, 10 Marston, Richmond v. 15 Ind. 134, 260 Marston v. Sweet, 66 New York, 207, 77 Martel, Deuil v. 10 La. An. 643, 300 Martel, State v. 8 Robinson (La.) 22, 432 Martz, Morin v. 13 Minn. 191, 58, 75 Martien, Morgan v. 32 Mo. 438, 320 Mardmant, Toussaint v. 2 Dum. & East, 100, 176 TABLE OF OASES. XCVH Section Marter, Kirkham v. 2 Bam. & Aid. 613, 40 Martin, Bibb v. 14 Smedes & Mar. (Miss.) 87, 284 Martin v. Black's Exrs. 20 Ala. 309, 47 Martin, Brisendine v. 1 Ired. Law, (Nor. Car.) 286, 249 Martin, Brockett». 11 Kansas, 878, 481 Maitin, Boutte v. 16 La. (Curry) 133, 208 Martin v. Boyd, 11 New Hamp. 385, 151 Martin, Cooper v. 1 Dana (Ky.) 23, 233 Martin ». England, 5 Yerg. (Tenn.) 313, 60 Martin, Farris v. 10 Humph. (Tenn.) 495, 75 Martin, Garr v. 20 New York, 306, 217 Martin, Gibson v. 7 Humph. (Tenn.) 415, 515 Martin, Good v. 17 Am. Law Reg. Ill-, 151, 152, 153 Martin, Gordon v. Pitzgibbon, 302, 63 Martin v. Hazard Powder Co. 2 Col- orado, 596, 70 Martin, Howes v. 1 Esp. 162, 46, 54 Martin, Jarratt v. 70 Nor. Gar. 459, - 121 Martin v. Kibourn, 1 Central Law Jour. 94, 409 Martin v. Mechanics' Bank, 6 Harr. & Johns. (Md.) 235, 376 Martin, McArthur v. 23 Minn. 74, 260 Martin v. Mitchell, 2 Jacob & Walk. 413, 75 Martin, Nowland ». 1 Iredell Law (Nor. Car.) 307, 249 Martin, Overturf v. 2 Ind. (2 Car- ter) 507, 505, 511 Martin, Patterson v. 7 Ohio, 225, 188 Martin v. Pope, 6 Ala. 582, 286 Martin, Sample v. 46 Ind. 226, 154 Martin, Smith v. 4 Des. Eq. (So. Car.) 148, 117 Martin v. Shekan, 2 Colorado, 614, 206 Martin, Tapley v. 116 Mass. 275, 367 Martin v. Taylor, 8 Bush (Ky.) 384, 878 G Section Martin v. Thomas, 24 How. (U. S.) 315, 335 Martin, Williams v. 2 Duvall (Ky.) 491, 818 Martin, Wilson v. 74 Pa. St. 159, 74 Martin v. Wright, 6 Adol. & Ell. (N. S.) 919, 131 Marwin, Bradford Admr. u. 2 Fla. 463, ' 276 Marvin, Henderson v. 81 Barb. (N. Y.) 297, 103 Marwin, Morrison v. 6 Ala. 797, 272 Maiyatts v. White, 2 Starkie, 101, 287 Mascall, Walton v. 18 Mees. & Wels. 452, 170 Mascall, Walton v. 13 Mees. & Wels. 72, 172 Maser v. Strickland, 17 Serg. & Rawle (Pa.) 354, 530 Massie v. Majin, 17 Iowa, 131, 265 Mason, Chichester ». 7 Leigh (Va.) 244, 888 Mason v. Dousay, 35 111. 424, 53 Mason, Hanmer v. 24 Ala. 480, 492 Mason, Heralson ». 58 Mo. 211, 84 Mason, Howe v. 12 Iowa, 202, 480 Mason, Laurason v. 8 Cranch, 492, 67 Mason, Leonard v. 1 Wend. 522, 53 Mason, McWilKams v. 31 New York, 294, 95 Mason ». Nichols, 22 Wis. 376, 121 Mason v. Pritchard, 12 East, 227, 7:', 133 Mason ». Richards, 12 Iowa, 73, 417 Mason, United States ». 2 Bond, 183, 444 Masterson, Lathrop v. 44 Texas, 527, 859 Mateer, Driskell v. 81 Mo. 325, 212 Mather, Klein v. 2 Gilman (lU.) 317, 252 Mather v. People, 12 111. 9, 428 Mather. Rand d. 11 Cush. 1, 38 Matthewson v. Strafford Bank, 45 New Hamp. 104, 306 Matthis. Powell v. 4 Ired. Law (Nor. Car.) 83, 252, 255 Matheson v. Jones, 30 Ga. 806, 17, 852 xcvm TABLE OF CASES. Section Mathews v. Aiken, 1 New York, 595, 260 Mathews v. Chrisman, 12 Smedes & Mar. (Miss.) 595, 164, 165 Mathews, Houghton v. 3 Bos. & Pul. 485, 67 Mathews, Kelly v. 5 Ark. (Pike) 22:i, 505 Matthews, Kent v. 12 Leigh (Va.) 573, 205 Mathews, Railton v. 10 Clark & Finnelly, 934, 365 Mathews, Ritenour v . 42 Ind. 7, 194 Mathews p. Switzler, 46 Mo. 301, 286 Matson, Bank of Missouri v. 24 Mo. 333, 381 Matson, Bank of Missouri v. 26 Mo. 243, 19 Matson, Gedyev. 25 Beavan, 310, 266 Matson, Admr. State v. 44 Mo. 305, 383 Matson v. Wharam, 2 Term R. 80, 61, 62, 63, 64 .Matteson, Constant v. 22 111. 546, 285 .Matthews, Fulton i>. 15 Johns. 433, 296 Mauldlin v. Branch Bank at Mo- bile, 2 Ala. 502, ■ 10 .Mauley, Simpson v. 2 Cro. & Jer. 12, 134 Maule V. Bucnell, 50 Pa. St. 39, 55 IMaunsell, Jephson v. 10 Irish Eq. Rep. 38, 389 Maunsell, Jephson v. 10 Irish Eq. Rep. 132, 389 Mauri v. Heffernan, 13 Johns. 58, 176 .Maurice, United States v. 2 Brock. 96, 445 Maxcey, Robertson v. 6Dana(Ky.) 101, 249 Maxwell v. Connor, 1 Hill Eq. (So. Car.) 14, 209 Maxwell, Fen-ell v. 28 Ohio St. 383, 46 Maxwell v. Haynes, 41 Me. 559, 62 Maxwell d. Salts, 4 Cold. (Tenn.) 293, 422 Maxwell, Weed Sewing Machine Co. V. 63 Mo. 486, 128 Sectiom May V. Robertson, 13 Ala. 86, 363 May V. Vann, 15 Fla. 553, 259 MaybeiTy V. Bainton, 2 Harrington (Del) 24, 10,169 Mayer of Dartmouth v. Silly, 7 Ell. & Black. 97, 471 Mayer, Heidenheimer v. 10 Jones & Span. (N. Y.) 606, 107 Mayer v. Isaac, 6 Mees. & Wels. 605, 78, 134 Mayers, Quine v. 2 Robinson (La.) 510, 408 Mayfield, Perkins v. 5 Port. (Ala.) 182, 188 Mayfield, Wheeler v. 31 Texas, 395, 96 Mayfield v. Wheeler, 37 Texas 256, 96, 157, 161 Mayhew v. Boyd, 5 Md. 102, 345 Mayhew v. Crickett, 2 Swanston, 185, 378, 380 Mayhew v. Crickett, 2 Swanston, 193, 221 Maynard, Blow v. 2 Leigh (Va.) 29, 182 Maynard, Winnesheik v. 44 Iowa, 15, 478 Mayo, Eaton «. 118 Mass. 141, 87 Mayo V. Hutchinson, 57 Me. 546, 4 Mayor v. Blaohe, 6 La. (Curry) 500, 369, 476 Mayor of Berwick v. Oswald, 1 EU. & Black. 2rf5, 471 Mayor of Berwick, Oswalds. House of Lords Cas. 856, 144 Mayor of Berwick v. Oswald, 3 Ell. & Black. 653, 471 Mayor of Birmingham v. Wright, 16 Ad. & Ell. N. S. 623, 145 Mayor, Boaler p. 19 J. Scott (N. S.) 76, 329 Mayor of Cambridge v. Dennis, Ell. Black. & Ell. 660, 141 Mayor, etc. of Wilmington v. Horn, 2 Har. (Del.) 190, 139 Mayor and City Council of Natchi- toches V. Redmond, 28 La. An. 274, 93, 474 Mayor and Selectmen of Homer v. Merritt, 27 La. An. 568, 445, 474 TABLE OF CASES. XCIX Section Mayor of New York v. Sibberns, 3 Abbot's Rep. Om. Cas. 266, 469 Mayrant, Commissioners v. 2 Bre- - vard (So. Car.) 228, 487 McAfee, Click ». 7 Port. (Ala.) 62, 48 McAllister, Eclrer v. 45 Md. 290, 77 McAllister, Sibley v. 8 New Hamp. 389, ' 892 McArthur v. Martin, 28 Minn. 74, 260 M'Broom ». Governor, 4 Port. 90, 525 M'Broom v, Governor, 6 Port. (Ala.) 32, 392 McBroom v. Sommerville, 2 Stew. (Ala.) 515, 415 M'Conico, Hopkirk v. 1 Brocken- brough, 220, 813, 315 M'Caraher v. Commonwealtb, 5 Watts. & Serg. (Pa.) 21, 443 McCabe v. Raney, 32 Ind. 809, 859 McCarter v. Turner, 49 Ga. 309, 17 McCalmont, Lawrence v. 2 How- ard (U. S.) 426, , 6, 78 McCallister, Hamblin ». 4 Bush (Ky.) 418, 508 McCauley, Hutchins v. 2 Dev. & Bat. Eq. (Nor. Car.) 899, 249 MoCauIey v. Offutt, 12 B. Mon. (Ky.)386, 421 McCauley, Tinker v. 8 Micb. 188, 85 McCarter v. Turner, 49 Ga. 309, 507 McCarty ». Gordon, 4 Wharton (Pa.) 821, 216 McCarty, Gordon v. 3 Wharton (Pa.) 407, 216 McCarty v. Roots, 21 Howard (U. S.) 432, 225 McCaffil «. Radcliff, 3 Robertson, (N. Y.) 445, 63 McCasland, Gibbons ». 1 Barn. & Aid. 690, 65 McCann, Miller v. 7 Paige Ch. R. 451, 296 McCann v. Dennett, 18 New Hamp. 528, 295 McChesney, Corbin v- 26 III. 281, 49 McChord, Bank of Com. v. 4 Dana (Ky.) 191, 881 Section McClung, Union Bank v. 9 Humph. (Tenn.) 98, 304, 305 McClung's Exr. Taylor v. 2 Hous- ton (Del.) 24, 97, 157 McClanahan, Byers v. 6 Gill & Johns. 250, 46, 2i9, 256 McClelland, Greenough v. 2 Ell. & EU. 424, 17, 328 McClelland, Linn v. 4 Devereux & Batt. Law (Nor. Car.) 458, 257 MoClure, Barkers. 2 Blackf. (Ind.) 14, 321, 825 McClure «. Commonwealth, 80 Pa. St. 167, 493 McClure's Admr. Rodgers v. 4 Gratt. (Va.) 81, 268 McClure ». Smith, 56 Ga. 439, 439 McClurg V. Fryer, 15 Pa. St. 293, 84 McCleary, Mitchell v. 42 Md. 374, 164 McClaughry, McNaught v. 42 New York, 22, 7 McCowan, Conwell o. 58 111. 363, 275 MoConnell v. Brillhart, 17 111. 354, 75, 76 McConnell, Fraser v. 23 Ga.368, 17, 25 MoConnell, Huntu. 1 T. B. Monroe (Ky.) 219, 105 MoConnell w. Scott, 15 Ohio, 401, 204 McCormack, State v. 50 Mo. 568, 464 MoCormack's Admr. ». Obannon's Exr. 8 Munf. (Va.) 484, 254 McCormick v. Bay City, 23 Mich. 457, 356 McCormick, ElKs v. 1 Hilton (N. Y.J 313, 889 McCormick's Admr. ». Irwin, 35 Pa. St. Ill, 260 McCormick ». Moss, 41 111. 852, 458 McComb V. Kittridge, 14 Ohio, 848, 307 McComb •(.'. Wright, 4 Johns. Ch. 659, 76 McCollum V. Gushing, 22 Ark. 540 157, 158, 169 McCollum ». Hinkley, 9 Vt. 143, 206 McCord u. Johnson, 4 Bibb (Ky.) 531, 514 McCreary v. Van Hook, 35 Tex. 681, 9 TABLE OB" CASES. Section McCrea, Corporation of Chatham «. 12 Up. Can. C. P. R. 852, 84 McCrea v. Parmont, 16 Wend. 460, 75 McCramer v. Thompson, 21 Iowa, 244, 333 McCrary v. Coley, Georgia Decis- ions, 104, 27 McCracken v. Todd, 1 Kansas, 148, 442,444 McCurdy, Hickman v. 7 J. J. Mar. (Ky.) 555, 250 McCue V. Smith, 9 Minn. 252, 38 McCullough, Harger v. 2 Denio, 119, 26 McCullough, Moss v. 7 Barb. (N. T.) 279, 26 McCullough, Moss v. 5 Hill (N. Y.) 131, 524 McCune v. Belt, 45 Mo. 174, 225, 233 McCunn, Darlington v. 2 E. D. Smith (N. T.) 411, 62 McDade, Bank of Alabama, v. 4 Port. (Ala.) 452, 188 McDaniel v. Lee, 37 Mo. 204, 248 McDeannon, Kinsey v. 5 Cold. (Tenn.) 392, 282 McDonald v. Bradshaw, 2 Kelly (Ga.) 248, 458 McDonald, Brown v. 8 Terg. (Tenn.) 158, . 244 McDonald. Chase v. 7 Harris & Johns. (Md.) 160, .79 McDonald v. Felt, 49 Cal. 354, 410, 423 McDonald, Gray v. 19 Wis. 218, 231 McDonald, Independent School District of Montezuma ». 39 Iowa, 564, 466 M'Doal V. Teomans, 8 Watts (Pa.) 361, 83 MoDougal V. Calef, 34 New Hamp. • 534, 110 McDougald v. Dougherty, 14 Ga. 674, 271 McDougald v. Maddox, 32 Ga. 63, 465 McDowell V. Bank, 1 Harrington, (Del.) 369, 27, 376 McDowell V. Bank of Wilmington & Brandywine, 2 Del. Ch. R. 1, 296 Section McDowell V. Chambers, 1 Strobh. Bq. (So. Car.) 347, 66 McDowell V. Crook, 10 La. An. 31, 191 McDowell, Meade v 5 Binney (Pa.) 195, 120- 520 McDowell, Mims v. 4 Ga. 182, 181, 185 McDowell, Nichols v. 14 B. Mon. (Ky.)5, . 208 McElvain, Treasurer of, Franklin Co. V. 5 Ohio, 200, 494 McBwen, Philbrooks v. 29 Ind. 347, 389 McEachron, Inhabitants of New Providence v. 4 Vroom (N. J.) 389, 477 McFadden, Burt v. 58 HI. 479, 347 McFarlane, Chalaron v. 5 La. (Curry) 227, 356 McFarlane, Shaw v. 1 Ired. Law (Nor. Car.) 216, 370 McFaul, Bank of Montreal v. 17 Grant's Ch. R. 234, 123 McGee, Albertson v. 7 Terg. (Tenn.) 106, 396 McGee, Coger's Exrs. v. 2 Bibb (Ky.) 321, 352 McGee v. Metcalf, 12 Smedes & Mar. (Miss.) 535, 298, 388 McGehee v. Gewin, 25 Ala. 176, 4«3, 487, 489 McGehee v. McGehee, 12 Ala. 83, 228 McGehee v. Scott, 15 Ga. 74, 492 McGill V. Bank of U. S. 12 Whea- ton, 511, 344 McGinnis, Davis Sewing Machine Co. «. 45 Iowa, 538, 100 McGovem, Dobyns v. 15 Mo. 662, 498 McGovem v. Hoesbaok, 53 Pa. St. 176, 108 McGovem, McLaughlin u. 34 Barb. (N. T.) 208, 127 MoGovney v. State, 20 Ohio, 98, 112 McGruder, Johnson v. 15 Mo. 365, 76 McGregory, Fiske». 34 New Hamp. 414, 58 McGrew, Chapman v. 20 111. 101, 386 McGrew v. Governor, 19 Ala. 89, 480 McGrew v. Tombeckbee Bank, 5 Port. Ala. 547, 209 TABLE OP CASES. CI Section McGuire ». Bry, 3 Robinson (La.) 196, 314, 447, 478 McGuire, Fennell v. 21 Up. Can. C. P. E. 134, 113, 131 McGuire '». Woodbridge, 6 Robin- son (La.) 47, 312 McHatton, People ». 3 GUman (lU.) 638, ' ■ ,324 McHatton, People -o. 2 Gilman (111.) 731, 469 McHaney n. Crabtee, 6 T. B. Mon. (Ky.) 104, 378 MoHenry, Hall v. 19 Iowa, 521, 332, 333 Mcintosh V. Likens, 25 Iowa, 155, 92 Molver v. Richardson, 1 Maule & Sel. 557, 162 McKay, Walker v. 2 Met. (Ky.) 294, 195 McKamey, England v. 4 Sneed (Tenn.) 75, 505 McKee v. Amonett, 6 La. An. 207, 272 McKee v. Campbell, 27 Mich. 497, 187 McKee, Coats ». 26 Ind. 223, 22, 345 McKee, Gates, v. 13 New York, 232, 133 McKenzie v. Jackson, 4 Ala. 230, 49 McKenzie, Stroop ». 38 Tex. 132, 17 McKecknie v. Ward, 58 New York, 541, ' 322 McKensie v. ParreU, 4 Bosw. (N. Y.) 192, 68 McKenne m. George, 2 Richardson Eq. (So. Car.) 15, 239, 247, 252, 348 MoKenny's Exrs. v. Waller, 1 Leigh (Va.)434, 382 McKnight v. Bradley, 10 Rich. Bq. (So. Car.) 557. 193 McKnight, Bright v. 1 Sneed (Tenn.) 158, 165 McKinney, Lowry v. 68 Pa. St. 294, 21 McKinney, Sublett v. 19 Texas, 438, 199 McKinney v. Whitney, 8 Allen, 207, 59 McKinnell, Wakefield v. 9 La. (Curry) 449, 428 Section McKoy, Camden v. 8 Scam. (111.) 437, 147 McLaren v. Hutchinson, 22 Cal. 187, 49, 52 McLaughlin v. McGovern, 34 Barb. (N. Y.) 208, 127 McLaren v. Watson's Exrs. 26 Wend. 425, 33 McLane v. Ragsdale, 31 Miss. 701, 199 McLendon, Newsom v. 6 Ga. 392, 280 McLean, Darling v. 20 Up. Can. Q. B. R. 372, ' 316 McLean, Holt v. 75 Nor. Car. 347, 142 McLean v. Towle, 3 Sandf. Ch. R. 117, ^ 275 McLean, Stevenson v. 11 Up. Can. C. P. R. 208, I 97 McLemore v. Powell, 12 Wheaton, 554, 296 McLemore, Read v. 34 Miss. 110, 349 McLeod, Files x,. 14 Ala. 611, 54 McLeod, Smith v. 3 Ired. Eq. (Nor. Car.) 390, 261 MoLewis v. Purgerson, 5 The Re- porter, 330, 233 McLott V. Savery, 11 Iowa, 323, 115 McLosky, Rives v. 5 Stew. & Port. (Ala.) 330, 214 McLurei). Cloclough, 17 Ala. 89, 363 MoMahan, McWhorterw. 10 Paige, 386, 76 McMaster, Smarr ». 35 Mo. 349, 323 McMicken ». Commonwealth, 58 Pa. St. 213, 439 McMillan, Adams ». 7 Port. (Ala.) 73, 66, 76 McMillan v. Bull's Head Bank, 82 Ind. 11, 1, 166 McMillan v. Dana, 18 Cal. 839, 408 McMillan, Firemen's Ins. Co. v. 29 Ala. 147, 340, 524 McMillan v. ParkeU, 64 Mo. 286, 28 McMuUin v. Bank of Penn Town- ship, 2 Pa. St. 843, 189 McMuIlen b. Hinkle, 89 Miss. 142, 372 McMullen, Riley ». 6 Gray, 500, 38 McMullin, Shannon v. 25 Gratt. (Ya.) 211, 378 cu TABLE OF CASES. Section McMurray v. Spicer, Law E. 5 Bq. 527, 67 McMurtry, Crump, v. 8 Mo. 408, 265 McNair, Cumpston v. 1 Wend. 457, 82 McNairy v. Bell, 5 Eobinson (La.) 418, ■ 528 McNairy v. Marshall, 7 Humph. (Tenn.) 229, 476 McN aught ». McClaughry, 42 New York, 22, 7 MoNeale v. Governor, S Gratt. (Va.) 299, 519 McNeU, Garden v. 21 New York, 336, 53 McNeil, Dunlap v. 85 Ind. 316, 115 McNeil u. SanfordS B. Mon. (Ky.) 11, 223 McNeile, Lacy v. 4 Dow. & By. 7, 52 MeNeese, Jenkins v. 34 Texas, 189, 378 McNier, Freudenstein v. 81 111. 208, 487 McNult V. Wilcox, 3 Howard, (Misa.) 417, 4C6 McNutt 0. Wilcox, 1 Freeman's Ch. E. (Miss.) 116, 27 MoPherson, Dickson v. 3 Grant's Ch. Appl. E. 185, 361 McPhersou v. Meek, 30 Mo. 345, 180 MoPherson v. Talbott, 10 GiU & Johns. (Md.) 499, 231 McQuesten v. Noyes, 6 New Hamp. 19, 25, 295 McQuewans v. Hamlin, 35 Pa. St. 517, 10 McEae, Daniel v. 2 Hawks (Nor. Car.) 590, 225 McSpedon, Therasson v. 2 Hilton (N. Y.) 1, 51 McTeer, Loyd v. 83 Ga. 37, 434 'McVain, Place v. 38 New York, 96, 317 McVean, Locke v. 33 Mich. 473, 103 McVeigh v. The Bank of the Old Dominion, 26 Gratt. (Va.) 785, 381 McVioar v. Eoyce. 17 Up. Can. Q. B, E. 529, 181 McVioker, Caldwell's Exrs. v. 9 Ark. (4 Eng.) 418, 296 Section McWhann, Burrows v. 1 Desaussure Eq. {So. Car,) 409, 269 McWhorter v. McMahan, 10 Paige, 386, '?« McWhorter v. Wright, 5^Ga. 555, 203 Mc Williams v. Mason, 'Sl New York, 294, 95 Meacham, Fox v. 6 Nebraska, 530, 480 Mead v. Keyes, 4 E. D. Smith (N. Y.) 510, 48 Mead v. Merrill, 33 New Hamp. 437, 201 Mead v. Merrill, 30 New Hamp. 472, 201 Meade v. McDowell, 5 Binney (Pa.) 195, 120, 520 Meadows, Heffield v. Law Eep. 4 Com. PI. 595, 130, 134 Mealing, Steele ». 24 Ala. 285, 233, 234, 236, 388 Mears v. Commonwealth, 8 Waits (Pa.) 223, 442 Mears, Whiton v. 11 Met. (Mass.) 563, 148, 168 Mease v. Wagner, 1 McCord (So. Ca,r.) 395, 44 Mebane, Freeman v. 2 Jones Eq. (Nor. Car.) 44, 280 Mechanics Fire Ina. Co. v. Ogden, 1 Wend. 137, 169 Mechanics' Nat. Bk. of Chicago, Gage V. 79 111.-62, 170, 208 Mechanics' Bank v. Hazard, 13 Johns. 353, 271 Mechanics' Bank, Martin, t'. 6 Harr. & Johns. (Md.) 235, 376 Mechanics' Bank v. Wright, 53 Mo. 153, • 17 Mecorney v. Stanley, 8 Cush. (Mass.) 85, 8 Medley, Bra.ndon v. 1 Jones, Eq. (Nor. Car.) 313, 235 Medlin v. Commonwealth, 11 Bush (Ky.) 605, 431 Meek, MoPherson v. 30 Mo. 345, 180 Meeker, Emmons v. 55 Ind. 321, 333 Meighan, Grundy v. 7 Irish Law Eep. 519, 122 Meigs, Waterman v. 4 Cush. 497, 67 TABLE OF CASES. cm Section Meiswinkle v. Jung, 20 Wis. 861, 310 Melhorn, Koch v. 25 Pa. St. 89, 86 Melick, Bogue v. 25 111. 91, 149 Melick V. Knox, 44 New York, 676, 110 Melendy v. Capen, 120 Mass. 222, 1.32 Mellendy v. Austin, 69 111. 15, 291 Mellen v. Nickerson, 12 Gray, 445, 864 Melton, Middleton v. 10 Barn & Ores. 817, 523 Melton, Middleton, v. 5 Man. & Eyl.-264, 523 Melville v. Doidge, 6 Man. Gr. & Scott, 450, 479 Melville V. Hayden, 3 Bam. & Aid. 593, 137 Menard v. Davidson, 3 La. An. 480, 341 Menard v. Scudder, 7 La. An. 385, 113, 131, 157, 158, 175 Mendenhall v. Lenwell, 5 Biackf. (Ind.) 125, 319 Mendelson v. Stout, 5 Jones & Spen. (N. Y.)408, 348 Mendell, Levi v. 1 Duvall (Ky.) 77, 35, 147, 153, 170 Menifee v. Clark, 35 Ind. 304, 298 Mennard, Gibbs v. 6 Paige Ch. R. 258, 194 , Mercien v. Andrus, 10 Wend. 461, 50 Merchants' Bank v. Corderville, 4 Robinson (La.) 506, 386 Merchants' Bank v. Rudolf, 5 Ne- braska, 527, 218 Mercer, Alexander v. 7 Ga. 549, 465 Mercer County Court, Bonta v. 7 Bush (Ky.) 576, 474 Mercer County v. Coovert, 6 Watts & Serg. (Pa.) 70, 102 Mercer, Kent v. 12 Up. Can. C. P. R. 30, 458 Merle v. Wells, 2 Camp. 413, 134 Merriken v. Godwin, 2 Delaware Ch. R. 2.36, 26 Merricke, Lord Arlington v. 2 Saun- ders, 403, 138 Men-ill, Chapin v. 4 Wend. 657, 46 Section Merrill, Gray v. 11 Bush (Ky.) 633, 421 Merrill, Levy v. 4 Greeul. 180,' 68 Merrill, Mead v. 30 New Hamp. 472, 201 Merrill, Mead d. 33 New Hamp. 437, 201. Merrill, Skillin v. 16 Mass. 40, 241 Merritt, Agnew v. 10 Minn. 308, 22, 328 Merritt, Canada West, etc. Ins. Co. V. 20 Up. Can. Q. B. R. 444, 111 Merritt v. Clason, 12 Johns. 102, 75,76 Merritt v. Lincoln, 21 Barb. 249, 206 Merritt, Mayor of Selectmen of Homer v. 27 La. An. 568, 445, 474 Merriam, Clark v. 25 Ct. 576, 147, 148, 153, 170 Merriam v. Rockwood, 47 New Hamp. 81, 354 Merrimack County Bank v. Brown, 12 New Hamp. 320, 286, 299, 300 Merryman v. State, 5 Harris & Johns. (Md.) 423, 270 Merserseau v. Lewis, 25 Wend. 243, 58 Mesner, Coster v. 58 Mo. 549, 305 Messer v. Swan, 4 New Hamp. 481, 23T Messinger, Boston Hat Manufactory V. 2 Pick. 223, 342 Metealf, McGee ». 12 Smedes & Mar. (Miss.) 535, 298, 388 Metcalfe Co. Ct. Newman v. 4 Bush (Ky.) 67, 466 Metzner v. Baldwin, 11 Minn. 150, 18 Mettler, State Bank at Brunswick V. 2 Bosw. (N.Y.) 392, 49 Meugy, SoUee v. 1 Bailey Law (So. Car.) 620, 97, 120, 136, 1.57 Meyer, Farwell v. 35 IR. 40, 323 Meyer r. Hartman, 72 111. 442, 49, 52 Meyer, Konitzky v. 49 New York, 571, 184 Meyer v. Lathrop, 10 Hun (N. Y) 66, 24 Michigan State Bank v. Estate of Leavenworth, 28 Vt. 209, 114 CIV TABLE OF CASES. Section Michigan State Bank v. Pecks, 28 Vt. 200, 97 Mickey, Seymour v. 15 Ohio St. 515, 148, 153 Middleton, Crosby v. Finch's Pre- cedents, 309, 118 Middleton v. First Natl. Bank of Marshaltown, 40 Iowa, 29, 421 Middleton, Copis v. 1 Turner & Rnss, 224, 273 Middleton, Copis v. 2 Turner & Russ, 224, 275 Middleton, Hobba v. 1 J. J. Marsh. (Ky.) 176, 494, 496, 532 Middleton v. Melton, 10 Barn. & Cress. 317, ' 623 Middleton v- Melton, 5 Man. & Ryl. 264, 523 Middleton, Shields v. 2 Cranch. C. C. 205, 53 Middlefield v. Gould, 10 Up. Can. C. P. R. 9, • 623 Middlesex Manf. Co. v. Lawrence, 1 Allen, 339, 143 Mieure, Judah v. 5 Blackf. (Ind.) 171, 264, 267 Mikell, Davis v. 1 Freeman, Ch. R. (Miss.) 548, 17, 27, 378 Milam, Ragland v. 10 Ala. 618, 231 Miles V. Bacon, 4 J. J. Marsh. (Ky.) 457, 182 Miles V. Linnell, 97 Mass. 298, 6 Miles, New Haven Bank v. 5 Ct. 587, 436 Miles, Roberts v. 12 Mich. 297, 211 Miles, Staudleyt). 36 Miss. 434, 7 Milford, Fuller v. 2 McLean, 74, 296 Mellish V. Green, 5 Grant's Ch. R. 665, 378 Milliken, Blatchford v. 35 111. 434, 148 Mills B. Gould, 14 Ind. 278, 319 Mills, Johnston v. 25 Texas, 704, 84 Mills, Johnson v. 10 Gushing, 603, 296 Mills, Kritzer ». 9 Cal. 21, 17 Mills, Lumpkin v. 4 Ga. 343, 273 MQlsf, Manning v. 12 Up. Can. Q. B. R. 515, 96 Mills, Taylor v. Cowper, 626, 189 Mills, Trask v. 7 Gush. 552, 111 Section Mills, Vankoughnet v. 5 Grant's Ch. R. 653, 325 Mills V. Watson, 1 Sweeney (N. T.) 374, 24 Mills, Winckworth v. 2 Esp. 484, 46 Millett V. Parker, 2 Mot. (Ky.) 608, 354 Miller v. Aldrich, 31 Mich. 408, 218 Miller v. BagweU, 3 McCord, Law (So. Car.) 429, 32 Miller V. Berkey, 27 Pa. St. 317, 388 Miller v. Commonwealth, 8 Pa. St. 444, 450 Miller's Admr. Commonwealth v. 8 Serg. & Rawle, 462, '27, 378 Miller v. Childress, 2 Humph. (Tenn.) 320, 511 Miller v. Cook, 23 New York, 495, 70 Miller v. County of Macoupin, 2 Gilman (111.) 50, 463 Miller, Benson v. 33 Ga. 275, 504 Miller v. Dyer, 1 DuvaU (Ky.) 263, 379, 382 Miller, ex parte, 1 Yerger (Tenn.) 435, 398 Miller v. Finley, 26 Mich. 249, 332 Miller, Frisch v. 5 Pa. St. 310, 348 Miller v. Gaskins, 1 Smedes&Mar. Ch. R. (Miss.) 524, 125 MiUer v. Gaston, 2 Hill (N. Y.) 188, 160 Miller v. Gilleland, 19 Pa. St. 119, 331 Miller v. Gillespie, 59 Mo. 220, 240 Miller, Hackleman v. 4 Blackf. (Ind.) 322, '53 Miller v. Howry, 3 Pen. & Watts (Pa.) 374, 213 Miller v. Irfine, 1 Dev. & Bat. 103, 68 Miller, Lyndon v. 36 Vt. 329, 445 Miller, Lyons v. 6 Gratt. (Va.) 427, 16 Miller v. McCan, 7 Paige Ch. R. 451, 296 Miller, Miller v. Phillips Eq. (Nor. Car.) 85, 276 Miller V. Moore, 3 Humph. (Tenn.) 189, 447, 466 Miller, Neff k. 8 Pa. St. ,347, 261, 283 Miller, Norton v. 25 Ark. 108, 30, 283 Miller v. Ord, 2 Binney, (Pa.) 382, 218 Miller, Owens v. 29 Md. 144, 282 TABLE OF OASES. OV Section Miller v. Pendleton, 4 Hen. & Munf. (Va.) 436, 275 Miller v. Porter, 5 Humph. (Tenn.) 294, 325 Miller, Regina v. 20 Tip. Can. Q. B. R. 485, 144 Miller, Robinson v. 2 Bush (Ky.) 179, 307 Miller v. Sawyer, 30 Vt. 412, 233 MiUer, State v. 5 Blackf. (Ind.) 881, 272 Miller, Schock v. 10 Pa. St. 401, 883 Miller v. Stem, 9 Pa. St. 286, 298 Miller v. Stem, 12 Pa. St. 883, 349 Miller v. Stewart, 9 Wheaton, 680, 342 Miller v. Stewart, 4 Washington (C. C.) 26, 842 MiUer v. Speed, 9 Heisk. (Tenn.) 196, 192 Miller, Taylor v. Phillip's Eq. (Nor. Car.) 365, 192 MiUer, Trustees of Section Sixteen, V. 3 Ohio, 261, 216 MiUer V. Tunis, 10 Up. Can. 0. P. R. 428, 127 Miller, Wells v. 66 New York, 255, 228 MiUer, White v. 47 Ind. 385, 176 MUner ». Green, 2 Johns. Cas. 283, 431 Mike, Houlditch v. 3 Esp. 86, 50, 51, 84 Milory, Ayres v. 53 Mo. 516, 354 Mims V. McDowell, 4 Ga. 182, 181, 185 Minet c.'B^artc, 14 Vesey, 189, 68 Minter v. Branch Bank at Mobile, 23 Ala. 762, 392 Miner, Benedict v. 58 111. 19, 334 Miner ». Graham, 24 Pa. St. 491, 113 Mines v. Sculthorpe, 2 Camp . 215, 77 Mississippi County ». Jackson, 51 Mo. 23, 447 Mishler, Deitzler v. 37 Pa. St. 82, 25 Mitchell V. Burton, 2 Head (Tenn.) 618, 335, 883 MitcheU, Collins v. 5 Fla. 364, ' 30, 408 Mitchell V. Commonwealth, 12 Bush (Ky.)' 247, 426 MitcheU v. Gotten, Exr. 2 Florida, 136, 290 Section MitcheU v. Gotten, Exr. 3 Pla. 134, 363 MitcheU v. De Witt, 25 Texas, (Supplement) 180, 227 Mitchell, Dietrich v. 43 111. 40, 149 MitcheU v. Duncan, 7 Florida, 13, 12 MitcheU, Hohnea v. 7 J. Scott (N. S.) 361, 67 MitcheU, Martin e. 2 Jacob & Walk. 413, 75 MitcheU v. McLeary, 42 Md. 874, 164 Mitchell, Montague v. 28 lU. 481, 309 MitcheU, New Haven Co. Bank v. 15 Ct. 206, 98, 166 MitcheU v. Turner, 37 Ala. 660, 245 MitcheU V. Waiiamson, 6 Md. 210, 82, 392 M'Neale v. Reed, 7 Irish, Ch. Rep. 251, 275 Moakley v. Riggs, 19 Johns. 69, 84 Moale V. Buchanan, 11 GUI & Johns. (Md.) 314, 66 McJberly, Moore v. 7 B. Mon. (Ky.) 299, 233 Moberly, Smith v. 10 B. Mon. (Ky.) 266, 94, 354 Mobile and Girard R. R. Co., Cox V. 44 Ala. 611, 309 Mobile and Girard R. R. Co., Cox V. 37 Ala. 320, 298, 309 MobUe and G. R. R. Co. v. Jones, 57 Ga. 198, 53 Mobley, Garvin v. 1 Bush (Ky.) 48, 849 Mockbee, Goddard v. 5 Cranoh, (C. C.) 666, 49 Modisett v. Governor, 2 Blackf. (Ind.) 135, 522 Mohler, Stickney v. 19 Md. 490, 26 Monro, Cheriy v. 2 Barb. Ch. R. 618, 24 Monson v. DraJieley, 40 Ct. 552, 223 Monteflore v. Lloyd, 15 J. Scott (N. S.)203, 98 ■ Monteith v. Commonwealth, 15 Gratt. (Va.) 172, 29 Montpelier Bank. v. Dixon, 4 Vt. 687, 381 Montague v. Mitchell, 28 lU. 481, 309 Montague, Syme v. 4 Hen. & Munf. 180, 405 CVl TABLE OF CASES. Section Montgomery ». Dillingham, 3 Smedes & Mar. (Miss.) 617, 296, 519 Montgomery v- Hamilton, 43 Ind. 451, 300 Montgomery, Kearnes v. 4 West Va. 29, 1, 147 Montgomery v. Kellogg, 43 Miss: 486, 163, 174 Montgomery v. Eussell, 10 La. (Curry) 330, 184 Montgomery, Smith v. 3 Texas, 199, 97 Moody, Taylor v. 3 Blackford, (Ind.) 92, 382 Moody, Woodson v. 4 Humph. (Tenn.)803, 173 Moodis V. Penman, 3 Dessaussure, Eq. (So. Car.) 482, 1C9 Moon, People v. 3 Scam. 111. 123, 473 Mooring, Woodman v. 3 Dev. Law (Nor. Car.) 237, 289 Moore v. Roberts, 3 J. Scott (N. S.) 830, ■ 112 Moore v. Alleghany City, 18 Pa. St. 55, 447 Moore, Boston & Sandwich Glass Co. V. 119 Mass. 435, 130, 135 Moore v. Bray, 10 Pa. St. 519, 269 Moore v. Bowmaker, 2 Marshall, 392, 416 Moore v. Bowmaker, 6 Taunt. 379, 416 Moore, Bowmaker, v. 3 Price, 214, 416 Moore, Bowmaker v. 7 Price, 223, 416 Moore V. Bowmaker, 2 Marshfill, 81, 416 Moore v. Broussard, 20 Martin (La.) 8 N. S. 277, 296 Moore v. Campbell, 36 Vt. 361, 264 Moore, Croft r. 9 Watts (Pa.) 451, 269 Moore v. Folsom, 14 Minn. 340, 149 Moore, Frederick v. 13 B. Mon. (Ky.) 470, 383 Moore, Govan v. 30 Ark. 667, 109 Moore v. Gray, 26 Ohio St. 525, 392 Moore, Griffin v. 2 Kelly (Ga.) 331, 426, 428 Moore, Harter v. 5 Blackf. (Ind.) 367, , 362 Sectiok Moore v. Holt, 10 Gratt. (Va.) 284, 88 Moore, Hightower v. 46 Ala. 387, . 113 Moore «. Isley, 2 Dev. & Batt. Eq. (Nor. Car.) 372, 245 Moore v. Loring, 106 Mass. 455, 410 Moore, Miller- v. 3 Humph. (Tenn.) 189. 447, 466 Moore v. Moberlv, 7 B. Mon. (Ky.) 299, 2.33 Moore ^. Paine, 12 Wend. 123, 123 Moore v. Potter, 9 Bush (Ky.) 357, 461 Moore v. State, 28 Ark. 480, 106 Moore, Siate v. 49 Ind. 558, 490 Moore, Tanner v. 9 Queen's B. 1, 134 Moore v. Waller's Heirs, 1 A. K. Marsh. (Ky.) 488, 126 Moore, Wells v. 3 Robinson (La.) 156, 108 Moore, Wesley Church v. 10 Pa. St. 273, 176, 199 Moore, Wheelwright v. 2 HaU (N. Y.) 162, 7 Moore, Woodward v. 13 Ohio St. 136, 526 Moore v. Horsham, 5 Ala. 645, 293 More V. Howland, 4 Denio, 264, 81 Moreau, Hubert v. 12 Moore, 216, 75 Morgan, Allen v. 5 Humph. (Tenn.) 624, 10, 217 Moi'gan V. Blackiston, 5 Harr. & Johns. (Md.) 61, 411 Morgan, Bradbury v. 1 Hurl. & Colt. 249, 113 Morgan v. Coffman, 8 La. An. 56, 391 Morgan v. Long, 29 Iowa, 434, 453 Morgan v. Martien, 32 Mo. 438, 320 Morgan, Neil v. 28 Jll. 524, 15 Morgan, Seacord v. 4 Abb. Rep. Om. Cas. 172, ' 393 Morgan, Seacord v. 8 Keyes (N. Y.) 636, 393 Morgan v. Seymour, 1 Reports in Chancery, 120, 263 Morgan v. Smith,*;? Hun (N. Y.) 244, 364 Morgan ef al v. Their Creditors, 1 (La.) (Miller) 527, 316 Morgan, Worel v. 5 Sneed (Tenn.) 79, 384 TABLE OF CASES. evil Section Morin v. Martz, 13 Minn. 191, 58, 75 Morley v. Boothly, 3 Bing. 107, 68,71 Morley v. Boothby, 10 Moore, 395, 7, 9, 71 Morley v. Dickinson, 12 Cal. 561, 378 Morley v. Inglis, 5 Scott, 314, 203 Morley v. Inglis, 4. Bing (N.C.) 58, 203 Morley v. Town of Metamora, 78 111. 394, 467, 522 Morley, Wright v. 11 Vesey, 12, 280 Mortland v. Himes, 8 Pa. St. 265, 129 Morrell v. Cowan, Law Rep. 6 Eq. Div. 166, 9, 109 Morrice V. Redwyn, 2 Barnardiston, 26, 178 Morrill, in re. 2 Sawyer, 356, 288 Morrill, Smith v. 54 Me. 48, 226 Moi-ris, Buckner v. 2 J. J. Marsh. {Ky.)121, 273 Morris v. Cleasby, 4 Maule & Sel. 566, 57 Morris' Canal & Banking Co. v. Van Vorst's Admx. 1 Zab. (N. J.) 100, 343, 369, 479 Morris, Eichelberger v. 6 Watts (Pa.). 42, 124 Morris, Hoover v. 3 Ohio, 56, 54 MoiTis V. Kniffin, 37 Barb. (N. Y.) 336, 75 Morris, Morris v. 9 Heisk. (Tenn.) 814, 497 Morris v. Wadsworth, 17 Wend. 103, 169 Morrison, Baker v. 4 La. An. 372, 12 Morrison v. Berkly, 7 Serg. & Eawle (Pa.) 238, 181 Morrison, Caruegieu. 2 Met. (Mass.) 381, 67 Moirison, Guthrie v. 1 Harrington (Del.) 368, 436 Morrison v. Hartman, 14 Pa. St. 55, 382 Morrison's Exr. Higgins v.. 4 Dana (Ky.) 100, 235 Morrison v. Jack, 48 Pa. St. 113, 283 Morrison v. Marvin, 6 Ala. 797, 272 Morrison v. Page, 9 Dana (Ky.) 428, 199 Section Morrison v. Poyntz, 7 Dana (Ky.) 307, 252, 254 Morrison v. Taylor, 21 Ala. 779, 238 Morrison, Taylor v. 26 Ala. 728, 235 Morrison v. Turnour, 18 Vesey, 175, 75 Morrison, Warner v. 3 Allen, 556, 223, 232 Morrow's Admr. v. Peyton's Admr. 8 Leigh (Va.) 54, 25 Morrow, Morrow v. 2 Tenn. Ch. R. (Cooper) 549, 177 Morrow, Slevin v. 4 Ind. (2 Por- ter) 425, 384 Morse, Hill v. 61 Me. 541, 241 Morse v. Hodson, 5 Mass. 314, 12 Morse v. Huntington, 40 Vt. 488, 320, 329 Morse, Slingerland v. 7 Johns. 463, 50 Morse v. Gleason, 64 New York, 204, 23 Morton, Cabot Bank v. 4 Gray, 156, 16 Morton o. Dean, 13 Met. (Mass.) 335, 66, 76 Morton, Rice u. 19 Mo. 263, 27, 383 Morton v. Roberts, 4 T. B. Mon. (Ky.) 491, 316 Mortlock V. BuUer, 10 Vesey, 292, 76 Moser v. Libenguth, 2 Rawle (Pa.) 428, 118 Moseley, Russell v. 3 Bro. & Bing. 211, 9, 70 Mosely v. Taylor, 4 Dana (Ky.) 542, 48 Mosher, Bangs v. 23 Barb. (N. Y.) 478, 317 Mosher v. Hotchkiss, 2 Keyes, 589, 70, 88 Mosher v. Hotchkiss, 3 Abb. Rep. Omitted Cas. (N. Y.)326, 70, 83 Mosier v. Waful, 56 Barb. (N. Y.) 80, 84 Moss V. Craft. 10 Mo. 720, 380 Moss, Curtis v. 2 Robinson (La.) 367, 127 Moss, McCormick v. 41 111. 352, 458 Moss V. MoCuUough, 5 Hill (N. Y.) 131, 524 Moss V. McCuUough, 7 Barb. (N. Y.) 279, 26 CVIU TABLE OF CASES. Section Moss V. Pettengill, 3 Minn. 217, 27, 378, 380 Moss V. Riddle, 5 Cranch, 351, 349 Moss V. State, 10 Mo. 338, 141 Motivos, Simon v. 1 W. Blackstone, 599, 76 Motivos, Simon v. 3 Burrow, 1,921, 76 Mott, Barnes v. 64 New York, 397, 21 Mott, Crafls v. 4 New York, 604, 25 Mott, Gay v. 43 Ga. 252, 7 Mott, Liohten v. 10 Ga. 138, 437 Mountjoy v. Banks Exrs. 6 Munt. (Va.) 387, 198 Mounts, Hagar v. 3 Blackf. (Ind.) 57, 362 Moulton, Campbell v. 30 Vt. 667, 94 Moulton, Westphal v. 45 Iowa, 163, 88 Moulton V. Noble, 1 La. An. 192, 316 Mountstephen v. Lakeman, Law Rep. 7 Q. B. 196, 40, 42, 63, 64 Mowbray v. Cunningham, Hilary Term 1773, Jones v. Cooper, 1 Cowp. 227, 61 Mowatt, Phoenix Fire Ins. Co. v. 6 Cow. 599, 4S1 Moyle, Boyd v. 2 Man. Gr. & S. 644, 9 Mozley v. Tinkler, 1 Gale, 11, 160 Mozley v. Tinkler, 5 Tyrwh. 416, 160 Mozley v. Tinkler, 1 Cromp. Mees. & Ros. 692, 160 Mt. Olivet Cemetery Co. «. Sher- bert, 2 Head (Tenn.) 116, 52 Mudd, Flynn v. 27 111. 323, 17, 305 Muir, State v. 20 Mo. 303, 458 Mullen, Bagott v. 32 Ind. 332, 229 MuUer v. Bohlens, 2 Wash. C. C. 378, 57 MuUer v. Downs, 94 United States, 444, 195 Muller V. Wadlington, 5 Richard- son (N. S.) So. Car. 342, 375 Mulford V. Bstudillo, 23 Cal. 94, 878 Mullen V. Soott, 9 La. An. 173, 530 Mundorff v. Singer, 5 Watts (Pa.) 172, 391 Munford, Bank v. 6 Ga. 44, 17, 505 Munford v. Rice, 6 Munf. (Va.) 81, 141 Section Munson, Beokley v. 22 Ct. 299, 187 Mundy, Devore v. 4 Strobhart Law (So. Car.) 15, 315 Munger, Postmaster General v. 2 Paine, 189, 463, 469 Municipality of Whitby v. Flint, 9 Up. Can. C. P. R. 449, 445, 447, 472 Municipal Corporation of East Zora V. Douglas, 17 Grant's Ch. R. 462, 365, 474 Municipal Council of Middlesex v. Peters, 9 Up. Can. C. P. R. 205, 348,351 Munn, Worrall v. 5 New York, 229, 75 Murphy, Boehne v. 46 Mo. 57, 132 Murphy, Crow ». 12 B. Mon. (Ky.) 444, 269 Murphy, Hubble v. 1 Duvall (Ky.) 247, 349 Murphy, Palsgrave v. 14 Up. Can. C. P. R. 153, 71 Murphy, Sullivan v. 23 Minn. 6, 49 Mure, ex parte 2 Cox, 63, 288 Murray v. Graham, 29 Iowa, 520, 17 Murray, Hindsdill v. 6 Vt. 136, 233 Murray v. Judah, 6 Cowen, 484, 315 Murrell, Gregory v. 2 Ired. Eq. (Nor. Car.) 233, 238 Musgrave v. Glasgow, 3 Ind. 31, 48, 295 Musgrave, Perfect v. 6 Price, 111, 296 Mushat V. Brevard, 4 Dev. (Nor. Car.) 73, 38 Musick V. Beebe, 17 Kansas, 47, 496 Musket V. Rogers, 8 Scott, 51, 206 Musket V. Rogers, 5 Bing. (N. C.) 728, 206 Mussey, Fessenden v. 11 Cush. 127, 75 Mussey». Rayner, 22 Pick. 223, 131, 157, 174 MuBBon, Graham v. 7 Scott, 769, 76 Mussulman v. People, 15 111. 51, 440 Myers v. First National Bank, 78 m. 257, 309 Myers v. Fretz, 4 Pa. St. 344, 494 Myers v. United States, 1 McLean 493, 294, 449 TABLE OF CASES. CIX Sectiok Myers v. Welles, 5 Hill (N. Y.) 463, 317 Mynatt, Owens v. 1 Heisk. (Tenn.) 675, 5 Mynderse, United States v. 11 Blatchford, 1, 443 Myres v. Parker, 6 Ohio St. 501, 393 Myrick v. Hasey, 27 Me. 9, 36 Myrick, Wyche v. 14 Ga. 584, 521 Myron Lodge, Liebbrandt v. 61 lU. 81, 295 Nabb V. Koontz, 17 Md. 283, 74, 128 Nabb, Little v. 10 Mo. 3, 68 Nagle, Huzzard v. 40 Pa. St. 178, 531 Nail V. Springfield, 9 Bush (Ky.) 673, 314 Nance, Simpson v. 1 Spears (So. Car.) 4, 47, 49 Napier v. Bruce, 8 Clark & Pinnel- ly, 470, 138 Nash V. Pugate, 24 Gratt. (Va.) 202, 355 Nash V. Hartland, 2 Irish Law Rep. 190, 70, 103 Nash, Neal v. 23 Ohio St. 483, 271 Nash, Reed v. 1 Wils. 305, 40, 43 Nathan, Cooke v. 16 Barb. (N. T.) 842, 83, 348 Nathan, Pott v. 1 Watts & Serg. (Pa.) 155, 227 National Exchange Bank v. Silli- man, 65 New York, 475, 275, 281 National Guardian Assurance, Towle V. 3 Giffard, 42, 351 National Peniberton Bank v. Lou- gee, 108 Mass. 371, 149 National V. B. of Bowdoinham, Jenkins ». 58 Me. 275, 385 Nations, Parker v. 33 Texas, 210, 378 Naylor, Doolittle v. 2Bosw.N. Y.) 206, 51 Naylor v. Moody, 3 Blackford (Ind.) 92, 382 Neal, Bronaugh». 1 Robinson (La.) 23, 203 Neal V. Nash, 23 Ohio St. 483, 271 SECTIOIf Neberroth v. Riegel, 71 Pa. St. 280, 63 Needhams v. Page, 3 B. Mon. (Ky.) 465, 147 Neely, Kannon »'. 10 Humph. (Tenn.) 288, 168 Neel V. Harding, 2 Met. (Ky.) 247, 17 l^eff's Appeal 9 Watts & Serg. (Pa.) 36, 82, 375 Neff V. Homer, 63 Pa. St. 327, 331 Neflf, Headington v. 7 Ohio, 229, 517 Neff V. Miller, 8 Pa. St. 347, 261, 283 Neelson ». Sanborn, 2 New Hamp. 414, 68 Neilson v. Fry, 16 OHo St. 552, 270 Neil V. Morgan, 28 lU. 524, 15 Nelson v. Anderson, 2 Call (Va.) 286, 402 Nelson v. Boynton, 3 Met. (Mass.) 396, 50, 54 Nelson v. Bostwick, 5 Hill, 37, 168 Nelson v. First National Bank of Chicago, 48 111. 36, 53 Nelson, Givens v. 10 Leigh (Va.) 382, 234 Nelson v. Hardy, 7 Ind, 364, 49 Nelson v. Richardson, 4 Sneed (Tenn.) 307, 156 Nelson v. Williams, 2 Dev. & Bat. Eq. (Nor. Car.) 118, 379 Neptune Ins. Co. v. Dorsey, 3 Md. Ch. R. 334, 266 Nesmith, Swan v. 7 Pick. 220, 57 Nettleton, Tilleston v. 6 Pick. 509, 61,64 Nevens, Poxcroft v. 4 Greenl. (Me.) 72, 447 Nevins v. Bank of Lansingburgh, 10 Mich. 547, 67 New, Bailey v. 29 Ga. 214, 209, 508 Newbury v. Armstrong, 6 Bing. 201, 70 Newbury v. Armstrong, 3 Moore & Payne, 509, 70 Newbury v. Armstrong, Moody & Malkin, 389, 70 Newcomb v. Blakely, 1 Mo. Appl. R. 289, 319 ex TABLE OF CASES. Section Newcomb, Hall v. 3 Hill (N. Y.) 233, 150 Newcomb, Hall v. 7 Hill (N. Y.) 416, 150, 153 Newcomer, Piper v. 25 Iowa, 221, 17 Newell, Crane v. 2 Pick. 612, 368 Newell (I. Fowler, 23 Barb. (N. Y.) 628, 8^ Newell 0. Hamer, 4 How. (Miss.) 684, 27, 206 Newell, Harris v. 42 Wis. 687, 1, 208 Newell V. Hurlburt, 2 Vt. 351, 191 Newell V. Ingraham, 15 Vt. 422, 61 Newell, Kimball v. 7 Hill, 116, 44, 128 Newell V. Norton, 3 Wallace, 267, 407 Newell, Orvis v. 17 Ct. 97, 17, 265 Newell, Prescott v. 39 Vt. 82, 255 Newhall, Loomia v. 15 Pick. 159, 43, 49 Newkrrk, Ringgold v. 3 Ark. (Pike) 96, 168 Newkirk, Wood v. 15 OWo St. 295, 307 Newlan v. Harrington, 24 111. 206, 333 Newman v. Campbell, Martin & Yerg. (Tenn.) 63, 515 Newman v. Metcalfe Co. Ct. 4 Bush (Ky.) 67, 466 Newman v. Hazlerigg, 1 Bush (Ky.) 412, 290 Newsam v. Fmch, 25 Barb. (N. Y.) 175, 306 Newsom v. McLendon, 6 Ga. 392, 280 Newton, Wheler v. 2 Eq. Cas. 44 c. 5, 75 Newton v. Chorlton, 2 Drewry, 333, 370 New Haven Bank v. Miles, 5 Ct. 587, 435 New Haven Co. Bank v. Mitchell, 15 Ct. 206, 98, 166 New Hampshire Savings Bank v. Colcord, 15 New Hamp. 119, 300, 370 New Hampshire Savings Bank v. Ela, 11 New Hamp. 335, 299, 305 New Hampshire Savings Bank v. Gill, 16 New Hamp. 578, 305 New Jersey Midland R. R. Co., Coe V. 27 New Jer. Eq. 110, 260 Sectiok New London Bank v. Lee, 11 Ct. 112, 218, 282 New Orleans Canal and Banking Co. V. Escoffie, 2 La. An. 830, 82, 391 New Orleans Print. & Pub. Co. Hawkins v. 29 La. An. 1.34, 98 Ney V. Orr, 2 Montana, 559, 403 Nichol V. Ridley, 5 Yerg. (Tenn.) 63, 66 Nicholl, United States v. 12 Whea- ton, 505, 475 Nichols V. AUen, 22 Minn. 283, 53, 85 Nichols, Howe v. 22 Me. 175, 163 Nichols V. Johnson, 10 Conn. 198, 67 Nichols V. Johnson, 10 Conn. 192, 66, 67 Nichols, King v. 16 Ohio St. 80, 458, 470 Nichols, Lauman v. 15 Iowa, 161, 19 Nichols, Mason v. 22 Wis. 376, 121 Nichols V. McDowell, 14 B. Mon. (Ky.) 5, 208 Nichols, Noyes v. 28 Ct. 159, 171, 175 Nichols V. Parsons, 6 New Hamp. 30, 20, 328 Nichols, Scott V. 27 Miss. 94, 199 NichoUs V. IngersoU, 7 Johns. 146, 427 NichoUs, Johnston v. 1 Man. Gr. & Scott, 251, 70 Nicholson u. Paget, 1 Cromp. & Mees. 48; Id. 3 Tyrwh. 164, 135 Nickels, Howe ». 22 Me. 175, 157, 174 Nickerson v. Chatterton, 7 Cal. 568, 420 Nickerson, Mellen v. 12 Gray, 445, 364 Niemcewicz v. Gahn, 3 Paige, 614, 22 Niemcewicz, Gahn v. 11 Wend. 312, 22 Nisbet V. Smith, 2 Brown Ch. Ca. 579, 205, 326 Nixon, Bledsoe v. 68 Nor. Car. 621, 273 Nixon, Carroll v. 4 Watts & Serg. (Pa.) 617, 213 Nixon, Gale v. 6 Cow. (N. Y.) 445, 66 Noble, Carman v. 9 Fa. St. 366, 190, 213 Noble, Mouton v. 1 La. An. 192, 316 Noble, Osbom v. 46 Miss. 449, 284 TABLE OF CASES. CXI , Section Noland ». Clark, 10 B. Mon. (Ky.) 239, 384 Nolen, Grimes ». 3 Humph. (Tenn.) 412, , 325 Nottingham Hide Co. v. Bottrill, Law Rep. 8 Com. PI. 694, 182 Nolley V. Calloway County Court, 11 Mo. 447, 451, 522, 535 Norment, State v. 12 La. (Curry) 511, 432 Norman, Ruble v. 7 Bush (Ky.) 582, 289 Northwestern R. R. Co. ■». Whin- ray, 1 Hurl. & Gor. (10 Exch.) 77, 341 Northumberland Bank v. Eyer, 58 Pa. St. 97, 33 Norton v. Coons, 6 New York, 33, 226 Norton v. Coons, 3 Denio, 130, 223 Norton ». Cammaok, 10 La. An. 10, 405 Norton v. Eastman, 4 Greenl. (Me.) 521, 163, 319 Norton v. Huxley, 13 Gray, 285, 59 Norton v. Miller, 25 Ark. 108, 80, 283 Norton, Newell v. 3 Wallace, 257, 407 Norton, People v. 9 New Tork, 176, 445 Norton, Sanford v. 14 Vt. 228, 151, 153 Norton v. Soule, 2 Greenl. (Me.) 341, 275 Norton, Spioer v. 13 Barb. (N.T.) 542, 71 North V. Robinson, 1 Duvall (Ky.) 71, 58 North British Ins. Co. v. Lloyd, 10 Exchequer, 523, 365 Northern Bank of Kentucky, Ward «. 14B. Mon. (Ky.)283, 94 Northwestern Mut. Life Ins. Co. v. Allis, 23, Minn. 82 Norris v. Evans, 2 B. Mon. (Ky.) 84, 271 Norris V. Ham, R. M. Charlton (Ga.)267, 271 Norris, Hatch ®. 36 Me. 419, 25 Norris, Reed v. 2 Mylne & Craig, 861, 182 Norris, Schneider v. 2 Maule & Sel. 286, 66, 75 Section NoiTis, Wolridge v. Law Rep. 6 Eq. Cas. 410, 192 Norwood, Bell v. Louisiana, (4 Curry) 95, 98 Noyes ». Humphreys, 11 Gratt. (Va.) 636, 55, 61, 64 Noyes, McQuesten v. 6 New Hamp. 19, 25, 295 Noyes ». Nichols, 28 Vt. 159, 171, 175 Nowland ». Martin, 1 Iredell Law (Nor. Car.) 307, 249 Nun-e V. Chittenden, 56 Ind. 462, 225 Nutzenholster v. State, 37 Ind. 457, 448 Oakeley ». Boorman, 21 Wend. 588, 74, 81 Oakeley r. Pashellor, 10 Bligh (N. S.) 548, 23 Oakey, Gasquet v. 19 La. (Curry) 76, 197 Oaks, Pemberton v. 4 Russell, 154, 98, 286, 287 Oaks V. Weller, 13 Vt. 106, 158 Oaks V. Weller, 16 Vt. 63, 174, 175 Obannon's Exr. McCormack's Admr. e. 3 Munf. (Va.) 484, 254 O'Bannon «. Saunders, 24 Gratt. (Va.) 133, 485 Obear, Whittemore v. 58 Mo. 280, 350 Oberndorfif v. Union Bank, 81 Md. 126, 288 Oberreich, Weed Sewing Machine Co. V. 38 Wis. 325, 317 O'Blenis v. Karing, 57.*New Tork, 649, 245 O'Callaghan, Queen v. 1 Irish, Eq. R. 439, 265 Ocheltree, Strunk v. 11 Iowa, 158, 484 Odell, Wootten v. 38 Ga. 224, 409 Odell V. Wotten, 4 Bankr. Reg. 183, 409 Odlin V. Greenleaf, 3 New Hamp. 270, 199 Odom, State v. 1 Speers Law (So. Car.) 245, 447 O'Donnell v. Leeman, 43 Me. 158, 66 CXll TABLE OF OASES. Section O'DonneU v. Smith, E. D. Smith (N.Y.) 124, 53 Oflford V. Davies, 12 J.Scott (N. S.) 748, 114 Offutt V. Commonwealth, 10 Bush (Ky.) 212, 460 Offutt, McCauley v. 12 B. Mon. (Ky.) 386, 421. Offutt, Robinson v. 7 T. B. Monroe (Ky.) 540, 119, 316 Ogden V. Aspinall, 7 Dow. & Ey- land, 637, 103 Ogden, Bailey v. 3 Johns. 399, 67, 75 Ogden V. Blydenburgh, 1 Hilton (N. T.) 182, 16 Ogden, Mechanics' Fire Ins. Co. v. 1 Wend. 137, 169 Ogden V. Eowe, 3 B. D. Smith, (N. T.) 31-2, 339 Ogden, Shepard v. 2 Scam. (111.) 257, 199 Ogier V. Higgins, 2 McCord Law (So. Car.) 8, 437 Ogilvie V. Foljamhe, 3 Merivale, 53, 75 Ogle V. Graham, 2 Pen. & Watts (Pa.) 132, 333 Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866, 283 Ohio Life Ins. & Trust Co. v. Reed- er, 18 Ohio, 36, 284 Ohio, Peabody ». 4 Ohio St. 387, 482 Okeson, Brubaker v. 36 Pa. St. 519, 212 Okie e. Spencer, 1 Miles (Pa.) 299, ,317 428 Olcott V. Lilly, 4 Johns. 407, Oldershaw v. King, 2 Hui-1. & Nor. 517, 8, 70 Oldham v. Broom, 28 Ohio St. 41, 230 , Olds, Stage v. 12 Ohio, 158, 115 Oliver's Admr. Finsley v. 5 Munf. (Va.) 419, 273 Oliver, divert). 4 Rawle (Pa.) 141, 352 Olmslead v. Greenly, 18 Johns. 12, 51 Olmsted, Olmsted v. 88 Ct. 309, 118 Oman, Clark v. 15 Gray, 521, 191 O'Neill V. Carter, 9 Up. Can. Q. B. R. 470, 347 Section Ontario Bank v. Walker, 1 Hill (N. T.) 652, 272 Orange Co. Bank, Herrick®. 27 Vt. 584, 391 Ord, Miller ». 2 Binney (Pa. 382, 218 Ordinary v. Carlile, 1 McMuUan Law (So. Car.) 100, 532 Ordinary®. Cooley, 1 Vroom(N. J.) 179, 12 Ordinary v. Corbett, Bay (So. Car.) 328, 502 Ordinary v. Kershaw, 1 McCarter (N. J.) 527, 496 Ordinary v. Wallace, 2 Richardson Law (So. Car.) 460, 532 Ordinary v. Wallace, 1 Richardson Law (So. Car.) 507, 532 Organ, People v. 27 111. 27, 335 Oriental Financial Corporation v. Overend, Law Rep. 7 Chancery Appl. Cas. 142, 19 Orleans Navigation Company, Lou- isiana State' Bank v. 3 La. An. 294, 3 Orman, Griffith v. 9 Florida, 22, 260 Orne, Cooke v. 37 111. 186, , 157, 164 Orrell v. Coppock, 26 Law Jour. Ch. 269, 53 Orr, Ney v. 2 Montana, 559, 403 Orr, Tennant v. 15 Irish Com. Law R. 397, 106 Orvis V. Newell, 17 Ct. 97, 17, 265 Osbom V. Cunningham, 4 Dev. & Bat. Law (Nor. Car.) 423, 242 Osbom V. Noble, 46 Miss. 449, 284 Osborne v. United States, 19 Wal- lace, 577, 475 Oshiel V. DeGraw, 6Cowen, 63, 93 Osgood, Harp o. 2 Hill (N. Y.) 216, 426, 440 Osgood, Osgood ». 39 New Hamp. 209, 191 Osgood, Vielie v. 8 Barb. (N. T.) 130, 66, 75 Ostrom, Claflin v. 54 New York, 581, 34 Oswald V. Mayor of Berwick, 5 House of Lords, Cas. 856, 144 TABLE OF CASES. CXlll Sectiok Oswald, Mayor of Berwick v. 3 Ell. & Black. 653, 471 Oswald, Mayor of Berwick v. 1 Ell. & Black. 295, 471 Other V. Iveson, 3 Drewry, 177, 117 Otis, Board of Supervissrs v. 62 New York, 88, 474 Otis V. Haseltine, 27 Cal. 80, 73 Otis, Vivian v. 24 Wis. 518, 466 Ottoman Bank, Black v. 15 Moore's Priv. Cou. Gas. 472, 368 Otto V. Jackson, 35 111. 349, 31 Ouland, Allaire ». 2 Johns. Cas. 52, 46 Outlaw V. Eeddick, 11 Ga. 669, 193 Overturf V. Martin, 2 Ind. (2 Car- ter) 507, 505, 511 Overend, Oriental Financial Cor- poration V. Law Rep. 7 Chancery Appl. Cas. 142, 19 Over, Rupp ». 3 Brewster (Pa.) 188, 200 Overton v. Tracy, 14 Serg. & Rawle (Pa.) 311, 173 Overton ». Woodson, 17 Mo. 453, 498 Overaore v. Garrett, 5 Lansing (N. T.) 156, ' 460 Ovingtoh V. Smith, 78 111. 250, 414, Owen, Bryant, Guardian «. 1 Kelly (Ga.) 355, 467, 533 Owen ». Homan, 13 Beavan, 196, 329 Owen V. Homan, 3 Macn. & Gor. 378, 200 Owen V. Long, 112 Mass. 403, 3 Owen V. State, 25 Ind. 371, 497 Owen V. Thomas, 3 Myl. & Keen, 358, 66 Owen, Williams II. 13 Simons, 597, 275 Owens V. Miller, 29 Md. 144, 282 Owens V. Mynatt, 1 Heisk. (Tenn.) 675, 5 Oxford Bank v. Haynes, 8 Pick. 428, 154, 168 Oxford Bank v. Lewis 8 Pick. 458, 305 Oxford, Peers v. 17 Grant's Ch. R. 472, 365 Oxford & Worcester R. R. Co. Woodcock V. 1 Drewry, 521, 334 Oxley V. Storer, 54 111. 159, 320 H Section Oxley V. Young, 2 H. Blaokstoue, 613, 212 Pace V. Marsh, 1 Bing. 216, 70 Pace V. Marsh, 8 Moore, 59, 70 Pack, Coles v. Law Rep. 5 Com. PL 65, 134 Packard, Curiae v. 29 Cal. 194, 295 Packard, Pain v. 13 Johns. 174, 206 Packard v. Richardson, 17 Mass. 122, 68 Paddock, Crouse v. 8 Hun (N. Y.) 630, 440 Padgett, Hutton ». 26 Md. 228, 68, 70 Page, Black River Bank v. 44 New York, 453, 390 Page I/. BusseU, 2 Maule & Sel. 551, 189 Page, Cobb v. 17 Pa. St. 469, 6 Page, Cooper v.. 2i Me. 73, 81, 170 Page, Kidder •». 48 New Hamp. 380, 217 Page, Morrison o. 9 Dana (Ky.) 428, , 199 Page, Needhams v. 3 B. Mon. (Ky.) 465, 147 Page, Prindle v. 21 Vt. 94, 245 Paget, Nicholson v. 1 Cromp. & Mees. 48 Id. 3 Tyrwh. 164, 78, 135 Pahlman v. Taylor, 75 111. 629, 147, 383 Pain V. Packard, 13 Johns. 174, 206 Paige V. Parker, 8 Gray. 211, 167, 173 Paine v. Drury, 19 Pick. 400, 109 Paine, Moore v. 12 Wend. 123, 128 Paine v. Voorhees, 26 Wis. 522, 318 Pallas, Latouche v. Hayes (Irish.) 450, 264 Palmer v. Bagg, 56 New York, 528, 100 Palmer v. Baker, 28 Up. Can. C. P. R. 302, 67 Palmer, Goodhue v. 13 Ind. 457, 310 Palmer, Jones v. 1 Doug. (Mich.) 379, 58, 68 Palmer, Lewis v. 28 New York, 271, 275 Palmer v. Stephens, 1 Denio, 471, 75 Palmer, Thomson v. 3 Richardson Eq. (So. Car.) 139, 271 cxiy TABLE OF OASES, Sectio n Palmer, Villars v. 67 111. 204, 392 Palethorpe v. Lesher, 2 Rawle (Pa.) 272, 425 Palsgrave v. Murphy, 14 Up, Can. C. P. R. 153, 71 Parham Sew. Maoh. Co. v. Brock, 113 Mass. 194, 94, 98 Parham v. Cobb, 9 La. An. 423, 412 Parham v. Green, 64 (Nor. Car.) 436, 257 Parish, Bums v. 3 B. Mon. (Ky.) 8, 186 Paris V. Hulett, 26 Vt. 308, 282 Parke, Dilts v. 1 South. (N. J.) 219, 49 Parkhurst v. Van Cortland, 14 Johns. 15, 66 iParldnson, Lindsays. 5 Irish Law, Rep. 124, 337 Parkis, Craig «..40 New York, 181, 34, 82, 85 iParks V. Brinkerhoff, 2 Hill (N. T.) 663, 15 iParks, Bums ». 53 Ga. 61, 200 iParks, Dearborn v. 5 Greenl. (Me.) 81, . 52 jParks v.. State, 7 Mo. 194, 392 rPark V. State, 4 Ga. 329, 434, 438 tParker v. Alexander, 2 La. An. 188, 391 iParker, Appleton v. 15 Gray, 173, 317 rParker^ Barker v. 1 Dum. & East 287, 99 iParker^ Bean v. 17 Mass. 591, 127 Parker ». BidweU, 3 Ct. 84, 427 Parker i>. Bradley, 2 Hill (N. T.) 584, 9, 127 Parker, City of Lowell v. 10 Met. (Mass.) 309, 484, 530 Parker, Coombs v. 17 Ohio, 289, 390 Parker, Pox v. 44 Barb. (N. T.) 541, 318 iParker, Jennison v. 7 Mich. 355, 884 IParker v. Leek, 1 Stew. (Ala.) 523, 179 Parker, Millett e. 2 Met. (Ky.) 608, 354 Parker, Myres v. 6 Ohio St. 501, 393 Parker v. Nations, 33 Texas, 210, 378 Parker, Paige v. 8 Gray, 211, 167, 173 .Parker, Pearson v, 3 New Hamp. 366, 179, 181 Sectioi* Parker, Propert v. Russ. & My. 625, 75 Parker v. Riddle, 11 Ohio, 102, .148 Parker v. State, 8 Blackf. (Ind.) 292,1 521 Parker, Stewart v. 55 Ga. 656, 17, 299 Parker v. Steriing, 10 Oliio, 357, 429 Parker, Sherraden v. 24 Iowa, 28, 386 Parker o. Wise, 6 Maule & Sel. 239, 103 Parkell, McMillan v. 64 Mo.' 286, 28 Pamell v. Hancock, 48 Cal. 462, 399 Pamell t>. Price, 3 Richardson Law (So. Car.) 121, 298 Parr, Rawstone v. 3 Russell, 259, 117 Parish, Burns k. 3 B. Mon. (Ky.) 8, 181 Parrish v. Gray, 1 Humph. (Tenn.) '88, 504 Parramore, GammeU v. 58 Ga. 54, 170 Parrott, Gross v. 16 Cal. 143, 313 Parsons, Hargreaves v. 13 Mees. & Wels. 561, 58 Parsons, Nichols v. 6 New Hamp. 30, 20, 328 Parsons v. Williams, 9 Ct. 236, 422 Pai-tridge v. Davis, 20 Vt. 499, 33, 154 Partridge, Bxall v. 8 Dum. & East. 308, 178 Pashellor, Oakeley v. 10 Bligh (N. S.) 548, 23 Pasley ». Freeman, 3 Term R. 51, 59 Passmore, Tyson v. 2 Pa. St. 122, 352 Passumpsic Bank v. Goss, 31 Vt. 315, ■ 354 Patchiu V. Swift, 21 Vt. 292, 68 Paterson, City of Council v. 2 Bailey Law (So. Car.) 165, 474 Pattani, Draper v. 2 Speais (So. Car.) 292, 66 Pattee, Chute v. 37 Me. 102, 307 Patten, v. Gumey, 17 Mass. 182, 59 Patten, Huntress v. 20 Me. 28, 84, 202 Patten, James v. 8 Barb. (N. Y.) 344, . 75 Patterson, Barney v. 6 Har. & Johns. (Md.) 182, 66 Patterson v. Cave, 61 Mo. 489, 128 Patterson, Conant v. 7 Vt. 163, 438 Patterson, Dumas v. 9 Ala. 484, 466 TA33LE OF CASES. cxv Section Patterson, Gwyn v. 72 Nor. Car. 189, 355 PatterBon ats. Inliabitants of Town- ship of Freehold, 38 N. J. Law, 255, 468 Patterson v. Martin, 7 Ohio, 225, 188 Patterson v. Pope, 5 Dana (Ky.) 241, 268 Patterson v. Eeed, 7 W'atts & Serg. (Pa.) 144, 160 Patterson, Swan v. 7 Md. 164, 266, 268 Patterson, Sawyer's Admr. 11 Ala. 523, 382 Pattison v. Belfield Union, 1 Hurl. & Gor. 523, 473 Pattison, Belfield Union v. 2 Hurl. & Gor. 623, 473 Patton, Clark v. 4 J. J. Marsh. (Ky.) 38, 311 Patton V. Shanklin, 14 B. Mon. (Ky.) IB, 333 Paul V. Berry, 78 111. 158, 20 Paul V. Jones, 1 Dum. & East, 599, 189 Paul V. Stackhouse, 33 Pa. St. 302, 7 Paulin, Bampton v. 4 Bing. 264, 49, 51, 54 Paulin V. Kaigirn, 5 Butcher (N. J.) 480, 235 Paulin V. Kaighn, 8 Duteher (N. ■ J.) 503, ' 226 Pawling*. United States, 4 Cranoh, 219, 357 Pawle V. Gunn, 4 Bing. N. C. 445, 38 Paw Paw 0. Bggleston, 25 Mich. 36, 268 Paj^ton, Corporation of Ontario ■ v. 27 Up. Can. C. P. R. 104, 472 Paxton, Lansen v. 22 Up. Can. C. P. E. 505, 225 Payne v. Able, 7 Bush (Ky.) 344, 409 Payne v. Baldwin, 14 Barb. (N.Y.) 570, 63 Payne, Davis v. 45 Iowa, 194, 508 Payne, Grider v. 9 Dana (Ky.) 188, 273 Payne v. lyes, 3 Dow. & Ryl. 664, 162 Payne, Lucas v. 7 Cal. 92, 49, Payne v. Powell, 14 Texas, 600, 309 Payne, Royal Canadian Bank v. 19 Grant's Ch. R. (Canada) 180, 21, 97 Section Payne v. Webster, 19 111. 103, 503 Payne v. WUson, 7 Bam. & Cres. 423, 9 Pebbles, Shepard v. 38 Wis. 373, 533 Peabody v. Chapman, 20 New Hamp. 418, 179 Peabody v. Harvey, 4 Conn. 119, 61 Peabody v. Ohio, 4 Ohio St. 387, 482 Peacock v. State, 44 Texas, 11, 431 Peake, Blalock v. 3 Jones' Eq. (Nor. Car.) 323, 277 Peake v. Estate of Dorwin, 25 Vt. 28, 311 Pearl v. Deacon, 1 DeGex & Jones, 461, 291 Pearl «. Deacon, 24 Beavan, 186, 291 Pearl Street Congregational So- ciety V. Imlay, 23 Ct. 10, 374 Pearl v. Wellmans, 11 111. 852, 401 Pearson, Anderson v. 2 Bailey Law (So. Car.) 107, 226 Pearson v. Gayle, 11 Ala. 278, 392 Pearson, Mahurin v. 8 New Hamp. 539, 2 1 Pearson ». Parker, 3 New Hamp. 366, 179, 181 Pearsons, Peoples Bank v. 30 Vt. 711, 28, 305 Pearce, Bancroft v. 27 Vt. 668; 197 Pearce, Wren v. 4 Smedes & Mar. (Miss.) 91, 7, 68, 86 Pease v. Hirst, 10 Bam. & Cress. 122, 101, 120 Peay, Aiken v. 5 Strob. Law (So. Car.) 15, 248 Peay u. Poston, 10 Yerg. (Tenn.) Ill, 314 Peck V. Bamey, 13 Vt. 93, 158, 170, 175 Peck V. Druett's Admr. 9 Dana (Ky.) 486, 866 Peck V. Frink, 10 Iowa, 193, 83, 170 Peck ». Hozier, 14 Johns. 846, 431 Peck, State v. 53 Me. 284, 355 Peck, Whitehead v. 1 Kelly (Ga.) 140, 185, 202 Pecker e. Julius, 2 Browne (Pa.) 31, 80, 117 Peckham v. Faria, 3 Douglass, 13, 61 CXVl TABLE OF CASES. Section Pecks, Michigan State Bank v. 28 Vt. 200, 80, 97 Peers v. Oxford, 17 Grant's Oh. R. 472, 365 Peer v. Kean, 14 Mich. 354, 288 Peel V. Tatlock, 1 Bos. & Pul. 419, 368 Peiper, Brady v. 1 Hilton (N. T.) 61, 352 Pell, Stephens v. 4 Tyrwh. 6, 49 Pell, Stephens v. 2 Cromp. & Mees. 710, 49 Pelton V. Prescott, 13 Iowa, 567, 334 Pemberton v. Oaks, 4 Russell, 154, 98, 286, 287 Penfield v. Goodrich 10 Hun (N.T.) 41, 24 Penton, Simpson v. 2 Cromp. & Mees. 480, 63 Pennell u. Pentz, 4 E. D. Smith, (N. T.) 839, 64 Pence ;;. Gale, 20 Minn. 257, 870 Pendexter v. Vernon, 9 Humph. (Tenn.) 84, 320 Pentz, Pennell v. 4 E. D. Smith, (N. Y.) 639, 64 Penick, Bank of Limestone v. 5 T. B. Mon. (Ky.) 25, 332 Penick, Bank of Limestone v. 2 T. B. Mon. (Ky.) 98, 332 Pennington v. "Woodall, 17 Ala. 685, 188 Pendlebury v. Walker, 4 Younge & Coll. (Exch.) 424, 224, 350 Pendell, Biesler v. 12 Mich. 224, 62 Penman, Moodie e. 3 Dessaussure, Eq. (So. Car.) 482, 109 Penniman v. Hartshorn, 13 Mass. 87, 75 Penniman v. Hudson, 14 Barb. (N. Y.) 579, 85 Penniman People ». 37 Cal. 271, 436 Penny v. Crane Bros. Man. Co. 80 111. 244, 82 Penny, Endioott v. 14 Sm. & Mar. (Miss.) 144, 76 Penoyer v. Watson, 16 Johns. 100, 97 Pennook, People v. 60 New York, 421, 451 Section Penrioe v. Crothwaite, 11 Martin, (La.) 0. S. 537, 438 Penn v. Collins, 5 Robinson (La.) 213, 339 Penn, Crawford v. 1 Swan (Tenn.) 388, 492 Penn, Tumey v. 16 111. 485, 115 Pengelly, Fair v. 34 Up. Can. Q. B. R. 611, 296 Pendleton v. Bank of Kentucky, 1 T. B. Mon. (Ky.) 171, 319, 479, 521 Pendleton, Miller v. 4 Hen. & Munf. (Va.) 436, 275 Pepper, State®. 31 Ind. 76, 336, 355, 358 Pepper v. State, 22 Ind. 399, 355, 358 Peppin V. Cooper, 2 Bam. & Aid. 431, 140 People V. Admire, 39 111. 251, 495 People V. Aikenhead, 5 Cal. 106, 464 People, Albee v. 22 lU. 533, 30 People, Ammons ». 11 111. 6, 462 People V. Blackford, 16 lU. 166, 469 People V. Breyfogle, 17 Cal. 504, 127 People ». Brown, 2 Douglass, (Mich.) 9, 835 People V. Bryon, 3 Johns. Cas. 53, 490 People ». Buster, 11 Cal. 215, 461 Peoples. Carpenter, 7 Cal. 402, 439 People V. Chalmers, 60 New York, 154, 79, 108 People V. Chisholm, 8 Cal. 29, 378 People, Combs v. 39 111. 183, 127 People, Compher v. 12 111. 290, 469 People, Coons v. 76 111. 383, 466 People V. Curry, 59 111. 35, 461 People, Davis v. 1 Gilman (111.) 409, 324 People V. Dikeman, 3 Abb. Rep. Om. Cas. 520, 485 People V. bunlap, 13 Johns. 437, 502 People V. Edwards, 9 Cal. 286, 442 People, Elkins ». 3 Scam. (lU.) 207, 458 People V. Evans, 29 Cal. 429, 461 People, Gingrich v. 34 111. 448, 430 People V. Greene, 5 Hill (N. Y.) 647, 433 People V. Hartley, 21 Cal. 585, 127 People V. Herr, 81 111. 125, 480 TABLE OF OASES. CXVll Section People, Huggins v. 89 111. 241, 430, 434 People, Jack ». 19 111. 57, 4 People V. Jansen, 7 Jolms. 332, 209, 474 People V. Jenkins, 17 Cal. 500, 29 People V. Kneeland, 31 Cal. 288, 335 People V. Leet, 13 111. 261, 269 People, Mather v. 12 111. 9, 428 People V. McHatton, 2 Gilman (111.) 731, 324, 469 People o.Moon, 3 Scam. (111.) 123, 473 People, Mussulman v. 15 111. 51, 440 People V. Norton, 9 New York, 176, * 445 People V. Penniman, 37 Cal. 271, 436 People V. Pennock, 60 New York, , 421, ■ 451 People, Pinkstaff v. 59 111. 148, 461, 466 People, Plummer «. 16 111. 358, 434 People, Pritchett v. 1 Gilman (111.) 525, 13 People V. Organ, 27 III. 27, 335 People, Reitz v. 72 111. 435, 493 People V. Russell, 4 Wend. 570, 474 People, Sans v. 3 Gilman (111.) 327, 438 People V. Schuyler, 5 Barb. (N. Y.) 166, 484 People, Seely v. 27 lU. 173, 358 Peoples. Shirley, 18 Cal. 121, 439 People V. Sloper, 1 Cummins (Ida- ho) 183, 435 People, Shook v. 39 111. 443, 450 People V. Skidmore, 17 Cal. 260, 280 People, Tappan v. 67 111. 339, 456 People V. Tompkins, 74 111. 482, 469 Peoples. Treadway, 17 Mich. 480, 452 People V. Vilas, 36 New York, 459, 469 People, Wann v. 57 111. 202, 473 People V. White, 11 111. 341, 392 People V. Wolf, 16 Cal. 385, 537 Peoples Bank v. Pearsons, 30 Vt. . 711, 28, 305 Peoria County v. Smith, 59 111. 412, 355, 469 Perigo, G. M. & T. Co. v. Grimes, 2 Colorado, 651, 416 Perfect ». Musgrave, 6 Price, 111, 296 Perrine v. Firemens Ins. Co. 22 • Ala. 575, 374 Section Perrine v. HotchHss, 58 Barb. (N. Y.) 77, ^ 183 Perrins v. Ragland, 5 Leigh' (Va.) 552, 222 Perrin, Langford's Exr. v. 5 Leigh (Va.) 552, 228 Perth, Cashin v. 7 Grant's Ch. & Appl. Rep. 340, 367 Perpet. Ins. Co., Blair v. 10 Mo. 559, 343, 521 Perry v. Armstrong, , 39 New - Hamp. 583, 94, 313 Perry v. Barret, 18 Mo. 140, 506, 512 Perry v. Saunders, 36 Iowa, 427, 375 Perry, Todd v. 20 Up. Can. Q. B. R. 649, 447 Perry, Wood v. 9 Iowa, 479, 257 Perry i\ Yarborough, 3 Jones' Eq. (Nor. Car.) 66, 195 Perham v. Raynall, 9 Moore, 566, 120 Perkins v. Ament, 2 Head (Tenn.) 110, 94 Perkins v. Barstow, 6 Rhode Is. 505, 120 Perkins v. Catlin, 11 Ct. 213, 148, 153 Perkins v. Cenas, 15 La. An. 60, 457 Perkins v. ElUott, 8 C. E. Green, 526, 4 Perkins v. Goodman, 21 Barb. (N. Y.) 218, 15 Perkins, Governor v. 2 Bibb (Ky.) 395, 488 Perkins v. Kershaw, 1 Hill Eq. (So. Car.) 344, 270 Perkins v. Mayfield, 5 Port. (Ala.) 182. 188 Perkins, Thompson v. 3 Mason, 232, 57 Perkins, Watkins v. 1 Ld. Raym. 224, 63 Perkins, Williams v. 21 Ark. 18, 7 Peroiful, Anthony v. 8 Ark. (3 Eng.) 494. 238, 249 Perdue, Branch Bank at Montgom- ery D. 3 Ala. 409, 206 Perley v. Loney, 17 Up. Can. Q B. R. 279, 17 Perley, Ramsey v. 34 lU. 504, 209 cxvm TABLE OF CASES. Section Peters v. Bamhill, 1 Hill Law (So. Car.) 237, 181, 184 Peters, Dougherty v. 2 Eobinson (La.) 534, 487 Peters ». Linensohmidt, 58 Mo. 464, 507 Peters, Municipal Council of Mid- dlesex f. 9 Up. Can. C. P. R. 205, 348, 351 Peters, Purdy v. 35 Barb. (N. Y.) 239, 89 Peters, Romanov. 2 Robinson (La.) 479, 472 Petit, Diamond u. 3 La. An. 37, 404 Pettway, Dawson v. 4 Dev. & Batt. Law (Nor. Car.) 396, 225 Pettingill, Moss v. 3 Minn. 217, 27, 378, 380 Petway, Eason ». 1 Dev. & Bat. Law (Nor. Car.) 44, 82 Petty V. Cooke, Law Rep. 6 Queen's Bench, 790, 290 Pettit, Watts v. 1 Bush (Ky.) 154, 461 Peyton's Admr. Morrow's Admr. ». 8 Leigh. (Va.) 54, 25 Pfeiffer w. Kingsland, 25 Mo. 66, 6 Phares v. Barbour, 49 111. 370, 372 Phears, Shepard ». 35 Texas, 763, 82 Phelps, Boynton v. 52 lU. 210, 413 Phelps ». Gan-ow, 8 Paige, Ch. 322, 62 Philbrooks v. McEwen, 29 Ind. 347, 389 Phipps, Brown ». 6 Smedes & Mar. (Miss.) 51, 454 Phipps, Craig v. 23 Miss. 240, 84 Phillips V. Astling, 2 Taunt. 206, 345 Phillips, Bateman v. 15 East, 272, 67 Phillips V. Bateman, 16 Bast, 356, 68 Phillips, Bridges v. 17 Texas, 128, 129 Phillips, Brinagar's Admr. ■». 1 B. Mon. (Ky.) 283, 296 Pipkin !/. Bond, 5 Ired. E. (Nor. Car.) 91, 296 Phillips 4). Poxall, Law Rep. 7 Queen's B. 666, 368 Phillips, Gold V. 10 Johns. 412, 53 Phillips, Harrison v. 46 Mo. 520, , 207 Phillips V. Riley, 27 Mo. 386, 506 PhiUips V. Rounds, 83 Me. 357, 308, 322, 323 SECTIOIf Phillips V. Solomon, 42 Ga. 192, 126 Philips, Trousdale v. 2 Swan (Tenn.) 384, 521 Phillips V. Wells, 2 Smeed (Tenn.) 154, 393 Philips V. Astling, 2 Taunt. 206, 172 Philips w. Shackford, Cro. Eliz. 455, 8 Phoenix Fire Ins. Co. v. Mowatt, 6 Cow. 599, 431 Phyfe V. Warden, 2 Edwards' Ch. 47, 852 Physic, Geary v. 5 Bam. & Cres. 234, , 66 Picksley, Reuss v. Law Rep. 1 Exoh. 342, ■ 75 Pickens v. Finney, 12 Smedes & Mar. (Miss.) 468, 388 Pickens, Kennedy v. 3 Ired. Eq. (Nor. Car.) 147, 278 Pickens ». Tearborough's Admr. 26 Ala. 417, 384 Pickens, Young v. 45 Miss. 553, 419 Pickett V. Bates, 3 La. An. 627, 177, 182 Pickett «. Land, 2 Bailey Law (So. Car.) 608, 208 Pickersgill v. Lahens, 15 Wallace, 140, 80, 117 Pickering v. Day, 2 Delaware Ch. R. 383, 294, 478 Pickering v. Day, 3 Houston (Del.) 474, 368, 394, 457 Picot V. Signiago, 22 Mo. 587, 28 Pico V. Webster, 14 Cal. 202, 530 Pidcock V. Bishop, 3 Bam. & Cress. 605, 366 Pidcock v. Bishop' 5 Dow & Ry. 505, 366 Piercy v. Pieroy, 1 Ired. Eq. (Nor. Car.) 214, 402 Pierce, Boynton v. 79 lU. 145, 147, 153 Pierce v. Goldsberry, 31 Ind. 52, 307 Pierce, Harris v. 6 Ind. 162, 153 Pierce u. Kennedy, 5 Cal. 138, 148 Pierce, Swift v. 13 Allen, 136, 64 Pierce, Walker «. 21 Gratt. (Va.) 722, 518 Pierce, Watriss «. 32 New Hamp. 560, 25, 209, 387 TABLE OF CASES. CXIX Section Pierse v. Irvine, 1 Minn. 369, 153 Pigon V. French, 1 Washington (U. S.) 278, 176 Piggott, Clancy v. 4 Nev. & Man. 496, 63, 68 Pike, Allen v. 3 Cush. 238, 157, 159 Pike V. Brown, 7 Oush. 133, 39, 58 Pike V. Irwin, 1 Sandf. (N. Y.) 14, 53, 60 Pike, Lang v. 27 Ohio St. 498, 79, 898 Pike, Marsh v. 10 Paige Ch. R. 595, 262 Pike, Marsh v. 1 Sandford's Ch. R. 210, 24 Pike, State v. 74 Nor. Car. 531, 526 Pilgrim v. Dykes, 24 Texas, 383, 325 PiUsbuiy, Concord v. 33 New Hamp. 310, 203 Pillans V. Van Mierop, 3 Burr. 1663, 9, 53, 68 Pinckney, Lowndes v. 2 Strob. Eq. (So. Car.) 44, 215 Pinckney, Lowndes v. 1 Richard- son's Bq. (So. Car.) 155, 232 Pinney, Huey v. 5 Minn. 310, 205, 208, 352 Pintard v. Davis, 1 Zabriskie (N. J.) 632, 208 Pintard v. Davis, 1 Spencer (N. J.) 205, 208 Pinkston v. Taliaferro, 9 Ala. 547, 249 Pinkstaff V. People, 59 111. 148, 461 Pipkin, Vann v. 77 Noi:. Car. 408, 487 Piper V. Newcomer, 25 Iowa, 221, 17 Pirkins v. Rudolph, 36 111. 306, 416 Pitcher, Chickasaw County v. 36 Iowa, 593. 316 Pittsburg, Ft. W. & C. R. R. Co. V. Shaeffer, 59 Pa. St. 350, 369 Pittman v. Chisolm, 43 Ga. 442, 84 Pitt V. Purssord, 8 Mees. & Wels. 638, 257 Pitts V. Beckett, 13 Mees. & Wels. 743, 66, 75 Pitts V. Congdon, 2 New York, 352, 58 Pitts V. Fugate, Adm'x, 41 Mo. 405, 527 Pitzer V. Harmon, 8 Blackf. (Ind.) 112, 181 Section Plant, Woolfolk «. 46 Ga. 422, 202, 298 Planters and Merchants Bank v. Blair, 4 Ala. 613, 94 Planters Bank, Johnson v. 4 Smedes & Mar. (Miss.) 165, 892 Planters Bank v. Lamkin, R. M. Charlton (Ga.) 29, 368 Placer County v. Dickerson, 45 Cal. 12, 459, 521 Place V. McVain, 38 New York, 96, 317 Place V. Taylor, 22 Ohio St. 317, 480 Plaxton, Yates v. 3 Levinz, 235, 435 Plazencia, State v. 6 Robinson (La.) 417, 483 Pleasanton's appeal, 75 Pa. St. 344, 114 Pledge V. Buss, Johnson (Eng. Ch.) 666, 348, 870 Plimpton, Robinson v. 25 New York, 484, 401 Plummer, Champion v. 1 Bos. & Pul. (N. R.) 252, 67 Plumer, Eastman v. 32 New Hamp. 238, 289 Plummer, Inhabitants of Alna v. 4 Greenl. (Me.) 258, 76 Plummer v. People, 16 111, 858, 434 Plymouth Gold Mining Co. Tufts v. 14 Allen, 407, 66 Poague, Watson v. 42 Iowa, 582, 290 Fob, Draper v. 2 Spear (So. Car.) 292, 75 Pocock, Fentum v. 1 Marshall, 14, 156 Pocook, Fentum v. 5 Taunt. 192, 156 Poe, Rhett v. 2 How. (U. S.) 457, 172 Pogue V. Joyner, 6 Ark. (1 Eng.) 241, 189 PoiUon V. Volkenning, 11 Hum (N. Y.) 385, 524 Polak V. Everett, Law Rep. 1 Queen's B. Div. 669, 370, 373 Pollard V. Louisville C. & L. R. R. Co. 7 Bush (Ky.) 597, 518 Pollard V. Stanton, 5 Ala. 451. 537 Polk, Farmers & Mechanics Bank V. 1 Delaware, Ch. R. 167, 444 Polk V. GaUant, 2 Dev. & Bat. Eq. (Nor. Car.) 895, 204 cxx TABLE OF OASES. Section Polki). Wisener, 2 Humph. (Tenn.) 520, 502 Police Jury, Haw v. 1 La. (Miller) 41, 349, 536 Police Jury, Slattery v. 2 La. An. 444, 888 Pomeroy, Abrams v. 13 111. 133, 107 Pomeroy, Dwight v. 17 Mass. 308, 852 Pond V. Clarke, 14 Ct. 334, 188 Pope ». Davidson, 5 J. J. Marsh. (Ky.) 400, 191 Pope, Martin v. 6 Ala. 532, 286 Pope, Patterson v. 5 Dana (Ky.) 241, 268 Pope's Admr. Lytle's Exrs. v. 11 B. Mon. (Ky.) 297, ' 251 Poppenhousen v. Seeley, 3 Abb. Eep. Om. Cas. 615, 403 Pooley V. Harradine, 7 BU. & Bl. 431, ■ 17, 19, 328 Pool, Price v. 8 Hurl. & Colt. 487, 369 Pooli). Williams, 8 Ired. Law (Nor. Car.) 286, 236 Poorman v. Goswiler, 2 Watts (Pa.) 69, 203 Porter, Arlington v. 47 Ala. 714, 624 Porter v. Hodenpuyl, 9 Mich. 11, 800 Porter, Miller v. 5 Humph. (Tenn.) 294, 825 Porter v. Stanley, 47 Me. 515, 464 Portage Co. Branch Bank v. Lane, 8 Ohio St. 405, 833 Port V. Robbins, 35 Iowa, 208, 871 Postlewait, Hunt v. 28 Iowa, 427, 309 Poston, Peay v. 10 Yerg. (Tenn.) Ill, 314 Post, Flanagan v. 45 Vt. 246, 864 Post, Jones v. 6 Cal. 102, 66, 73 Post V. Robbins, 35 Iowa, 208, 352 PosteU, Lipscomb v. 38 Miss. 476, 496 Postmaster General ». Hunger, 2 Paine, 189, 463, 469 Postmaster General, Dox v. 1 Pe- ters, 318, 474 Pott, Marberger v. 16 Pa. St. 9, 154 Fott V. Nathan, 1 Watts & Serg. (Pa.) 155, 227 Sectigit Potius, Bank of Pennsylvania v. M Watts (Pa.) 148, 266, 267, 820, 486 Potter, Besore v. 12 Serg. & Eawle (Pa.) 154, 118 Potter County, Clarke ». 1 Pa. St. 159, 475 Potter, Moore v. 9 Bush (Ky.) 357, 461 Potter V. State, 23 Ind. 550, 15, 444 Potter, State v. 63 Mo. 212, 355 Potter, Wetherbee v. 99 Mass. 354, 88 Pourne, Dowbiggen v. 2Tounge & Collyer (Exchequer) 462, 270 Powell, Bnicks v. 2Strobh. Eq. (So. Car.) 196, ' 462, 602 Powell V. Kettle, 1 Gilman (111.) 491, 118 Powell V. Matthis, 4 Ired. Law (Nor. Car.) 83. 252, 255 Powell, MoLemore v. 12 Wheaton, 554. 296 Powell, Payne v. 14 Texas, 600, 809 Powell, Powell v. 48 Cal. 234, 261 Powell V. Smith, 8 Johns. 249, 183, 190 Powell's Exrs. v. White, 11 Leigh (Va.) 309, 278 Powder Works, Child v. 44 New Hamp. 854, 191 Powers V. Bumcratz, 12 Ohio St. 273, 167 Powers, State v. 52 Miss. 198, 461 Poyntz, Morrison v. 7 Dana (Ky.) 307, 252, 254 Praed v. Gardiner, 2 Cox, 86, 279 Prather, Dobson v. 6 Ired. Eq. (Nor. Car.) 81, 379 Prather, Fensler v. 43 Ind. 119, 504 Prather v. Johnson, 3 Harr. & Johns. (Md.) 487, 179 Prather v. Vineyard, 4 Gilman (lU.) 40, 49 Pratt, Benton v. 2 Wend. 885, 59 Pratt V. Hedden, 121 Mass. 116, 9 Pratt V. Humphrey, 22 Conn. 817, 58 Pratt, Taylor v. 3 Wis. 674, 68 • Pratt V. Thornton, 28 Me. 355, 218 Prendergrass, Davey v. 5 Barn. & Aid. 187, 327 TABLE OF OASES. CXXl Section Pretle v. Baldwin, 6 Cuah. 549, 58 Prentiss, Fellows u. 3 Denio, 512, 135, 161 Prentiss, Fellows v. 9 Denio, 512, 316 Prentiss v. Garland, 64 Me. 155, 86 Pierce v. Goldsberry, 35 Ind. 317, 319 Prescott V. Brinsley, 6 Gush. 233, 95 Prescott, Cornell v. 2 Barb. (N. T.) 16, 24 Prescott V. Newell, 39 Vt. 82, 255 Prescott, Pelton v. 13 Iowa, 567, 334 Prestman, Drummond o. 12 Wheat- on, 515, 96, 97, 520 Presslar v. Stallworth, 37 Ala. 402, 272 Preston, Baker v. 1 Gilmer (Va.) 235, 522 Preston, Common wealth w. 5 T. B. Mon. (Ky.) 584, 474 Preston v. Davis, 8 Ark. (3 Eng.) 167, 115 Preston v. Henning, 6 Busli (Ky.) 556, 305 Preston v. Preston, 4 Gratt. (Va.) 88, 227, 228 Preslar, Stallworth v. 34 Ala. 505, 251, 257, 259 Preslar v. Stallworth, 37 Ala. 402, 259, 529 Piokney v. Aagadom, 1 Duer (N. T.) 89, 76 Pritchard v. Davis, 1 Spencer (N. J.) 205, 18 Pritchard v. Hitchcock, 6 Man. & Gr. 151, 290 Pritchard, Mason v. 12 Bast, 227, 78, 133 Price, Alsop v. 1 Douglass (Eng.) 160, 126 Price V. Barker, 4 Ellis & Black. 760, 329 Price V. Cloud, 6 Ala. 248, 515, 522 Price's Exrs. Harrison's Bxrs. v. 25 Gratt. (Va.) 553, 507, 513 Price V. Edmunds, 10 Bam. & Ores. 578, 321 Price V. Edmunds, 5 Man. & Ryl. 287, 321 Price V. Kennedy, 16 La. An. 78, 536 Section Price, Pamell v. 3 Eichardson Law (So. Car.) 121, 298 Price «. Pool, 3 Hurl. & Colt. 437, 369 Price V. Richardson, 15 Mees. & Wels. 539, 71 Price, Thigpen v. Phillips Eq. (Nor. Car.) 146, 192 Price V. Trusdell, 28 New Jersey, Eq. (1 Stew.) 200, 55 Price, Warner v. 3 Wend. 397, 223. Prindle V. Page, 21 Vt. 94, 245 Pringle, Regina v. 32 Up. Can. Q. B. R. 308, 474 Pringle v. Sizer, 2 Richardson, N. 5. (So. Car.) 59, 213 Prior I). WilHams, 3 Abb. Rep. Cm. Cas. 624, 118 Pride, Beckham v. 6 Richardson Eq. (So. Car.) 78, 244 Pride v. Boyce, Rice Eq. (So. Car.) 275, 118 Priestner, Wood v. Law Rep. 2 Exch. 66, 78, 131 Prigmore, White v. 29 Ark. 208, 398 Pinney v. Hershfield, 1 Montana, 367, 410 Prince, Tenney v. 4 Pick. 385, 6, 68, 153 Prince, Smith v. 14 Ct. 492, 188 Pritchett v. People, 1 GUman (111.) 525, 18 Pritchett v. Wilson, 39 Pa. St. 421, 361 Prout, Lenox v. 3 Wheaton, 520, 382 Proctor, Kyle v. 7 Bush (Ky.) 493, 839 Proctor, White v. 4 Taunt. 209, 76 Protection Ins. Co. v. Davis, 5 Al- len, 54, 166, 173 Propert v. Parker, 1 Russ. & My. 625, 75 Prosser, Collins v. 3 Dow. & Ryl. 112, 383 Prosser, Collins v. 1 Bam, & Cres. 682, 383 Prosser v. Laqueor, 4 HUl (N. T.) 420, 115 Prosser, Luqueer, v. 1 Hill (N. T.) 256, 150 CXXll TABLE OF CASES. Section Pryor, Allen v. 3 A. K. Marsh. (Ky.) 305, 39, 53 Pryor v. Leonard, 67 Ga. 136, 109 Puckett V. Bates, 4 Ala. 390, 61 Pulliam V. Withers, 8 Dana (Ey.) 98, 8, 332 Pulver, Armitage v. 37 New York, 494, 252 Pulver, Van Slyck v. HiU & Denio . (Lalor's Sup.) 47, 50 Purdy V. Peters, 35 Barb. (N. T.) 289, 89 Purefoy v. Jones, Freeman's Ch. 44, 375 Purmont, McCrea v. 6 Wend. 460, 75 Purssord, Pitt v. 8 Mees. & Wels. 538, 257 Purvis V. Cartaphan, 73 Nor. Car. 575, 22 Purvis, Ramey v. 38 Miss. 499, 512 Purviance v. Sutherland, 2 Ohio St. 478, 186 Putney, March v. 56 New Hamp. 34, 170, 173 Putnam v. Schuyler, 4 Hun, 166, 5, 362 Pyke's Admr. i). Clark, 3 B. Mon. (Ky.) 262, 309 Pyke V. Searcy, 4 Porter (Ala.) 52, 312, 501 Pybus V. Gibb, 6 EU. & Black. 902, 469 Quaokenbush, Gadsen v. 9 Rich. Law (So. Car.) 222, 90 Queen v. Hall, 1 Up. Can. C. P. R. ' 406, 142 Queen v. O'CaUaghan, 1 Irish, Eq. R. 439, 265 Quick, Sikes v. 7 Jones Law (Nor. Car.) 19, 180 Quin V. Hanford, 1 Hill, 82, 49, 60 Quiun V. Hard, 43 Vt. 375, 353 Quine v. Mayers, 2 Robinson (La.) 510, 408 Quinnipaiok Bank, Jones ». 29 Ct. 25, 282 Quintard v. D'Wolf 34 Barb. (N. J-) 97, 48 Quillen v. Arnold, 12 Nevada 234, 407 Section Quynn v. State, 1 Harr. & Johns. (Md.) 36, 447 Rabaud, D'Wolf v. 1 Peters, 476, 46, 60, 72 Race, Johns v. 18 La. An. 105, 426 Rachal, GUlet ». 9 Robinson (La.) 276, 312, 345 Radcliff, Abeel v. 13 Johns. 297, 66 RadclifF, Berg v. 6 Johns. Ch. 302, 118 Radcliff, McCaffil v. 3 Robertson (N. Y.) 445, 63 Radford, Loosemore v. 9 Mees. & Wels. 657, 190 Radakissen Mitter, Bank of Ben- gal V. 4 Moore's Privy Council Cas. 140, 286 Radway, Gottsberger v. 2 Hilton (N. Y.) 342, 70 Rae V. Eae, 6 Irish Ch. R. 490, 226 Ragland v. Milan, 10 Ala. 618, 231 Ragland, Perrins v. 5 Leigh (Va.) 552, 222 Ragsdale, McLane v. 31 Miss. 701, ly9 Rainey v. Yarborough, 2 Ired. Eq. (Nor. Car.) 249, 254 RaUton v. Mathews, 10 Clark & Pmnelly, 934, 365 Railway Co. v. Goodwin, 3 Wels. Hurl. & Gor. 320, 343 Railroad Company v. Howard, 7 Wall. 392, 3 Raikes v. Lee, 3 Man. & Gr. 452, 68 Raikes v. Todd, 1 Perry & Dav. 138, 71 Raikes v. Todd, 8 Add. & Ell. 846, 71 Rains v. Story, 3 Car. & Payne, 130, 64 Ralston v. Wood, 15 HI. 159, 249, 532 Ramey, Allen v. 4 Strob. Law (So. Car.) 30, 454 Ramsay, AUshouse v. 6 Wharton (Pa.) 331, 48 Ramsay, Commonwealth d. 2 Duv. (Ky.) 386, 4 Ramsey v. Coolbaugh, 13 Iowa, 164, 410 Ramsey v. Lewis, 30 Barb. (N. Y.) 403, 235 TABLE OF CASES. CXXIU Section Eamsey v. Perley, 34 LI. 504, 209 Ramey v. Purvis, 38 Miss. 499, 512 Ramsey o. Westmoreland Bank, 2 Pen. & Watts (Pa.) 203, 3;7 Eany v. Governor, 4 Blackf. (Ind.) 2, 141 Eaney v. Baron, Admr. 1 Fla. 327, 404 Rankin v. Childs, 9 Mo. 665, 157, 159 Rankin, Creightou v. 7 Clark & Knnelly, 825, 474 Rand, Baker v. 13 Barb. (N. Y.) 152, 137 Rand, Hall v. 8 Ct. 560, 136, 537 Rand v. Mather, 11 Cush. 1, 38 Randall, Roehester v. 105 Mass. 295, 466 Randall, Watson v. 20 Wend. 201, 48 Randolph, Randolph v. 3 Randolph (Va.) 490, 196 Raney, Brush v. 34 Ind. 416, 352 Raaey, McCabe v. 32 Ind. 309, 259 Ranelagh v. Hayes, 1 Vernon, 189, 82, 205 Rankin v. Childs, 9 Mo. 665, 175 Rankin v. Wilsey, 17 Iowa, 463, 285 Ransom, Barry v. 12 New York, 462, 46, 226 Ranson v. Sherwood, 26 Ct. 437, 535, 537 Ranson, Weller v. 34 Mo. 362, 314 Rapp, Duoker ». 9 Jones & Spen- cer (N. Y.) 235, 172, 375 Rapp, Duoker v. 67 New York, 464, 304, 308, 322 Raper, Evans v. 74 Nor. Car. 639, 121 Rapelye v. Bailey, 3 Ct. 438, 161 Rapelye «. Bailey, 5 Ct. 149, 134 Eastall, Straton v. 2 Dum. & East, 366, 389 Ratliff V. Trout, 6 J. J. Marsh. 606, 68 RatoHfF «. Leuning, 30 Ind. 289, 120 RatcUffe v. Graves, 1 Vernon, 196, 117 Rathhone, Douglass v. 5 Hill, 143, 168 Rathbone v. Warren, 10 Johns. 587, 210, 425 Ravencroft, Tarr v. 12 Gratt. (Va.) 642, 251 Rawstone v. Parr. 3 RusseU, 639, 117 Section Rawlinson, Williams v. Ryan & Moody, 233, 133 Rawlings, Field ». 1 Gilm. (lU.) 581, 111 Rawson, Bell v. 30 Ga. 712, 431 Rawson, Butler v. 1 Deuio, 105, 116 Rawson, Elam v. 21 Ga. 139, 272 Rawson v. Sherwood, 26 Conn. 437, 148 Raymond, Hill v. 3 Allen, 540, 62 Raynall, Perham v. 9 Moore, 566, 120 Ray, Bond v. 6 Humph. (Tenn.) 492, 493 Ray V. Brenner, 12 Kansas, 105, 392 Ray, Brown v. 18 New Hamp. 102, 233 Ray, Commonwealth v. 3 Gray, 441, 75 Ray, Wise v. 3 Greene (Iowa) 430, 75 Rayner v. Bell, 15 Mass. 377, 440 Rayner, Jackson v. 12 Johns. 291, 49,52 Hayner v. Linthorne, 2 Car. & Pa. 124, • 76 Rayner, Mussey v. 22 Pick. 223, 131, 157, 174 Reaney, State v. 13 Md. 230, 430 Reams, HoweU v. 73 Nor. Car. 391, 269 Reardon, Johns v. 11 Md^ 465, 22, 198 Reade v. Lowndes, 23 Beaven, 861, 26 Reader, v. Kingham, 13 Com. B. (J. Scott) N. S. 344, 58 Readfield v. Shaver, 50 Me. 36, 294, 355 Read, Congdon v. 7 Khode Is. 576, 136 Read v. Cutts, 7 Greenl. (Me.) 186, 1, 172 Read, Gourdin v. 8 Richardson Law, (So. Car.) 230, 357 Read, Jones n. 1 Humph. (Term.) 885, 515 Read v. McLemore, 84 Miss. 110, 349 Read v. Nash, 1 Wils. 805, 43 Read, Watson v. 1 Cooper's Ch. E. (Tenn.) 196, 378 Receivers of N. J. Midland R. R. Co. V. Wortendyke, 27 New Jer. Eq. 658, 266 CXXIV TABLE OF OASES. SEc?rioN Redmond, Mayor & City Council of Natchitoches v. 28 La. An. 274, ~ 93, 474 Eedington, Waterville Bank v. 52 Me. 466, 28 Redwyn, Morrice v. 2 Bamardis- ton, 26, 178 Reddick, Outlaws. 11 Ga. 669, 193 Redhead v. Cater, 1 Starkie 12, 43 Redman ». Deputy, 26 Ind. 338, 309 Redman, Swire v. Law Rep. 1 Queen's Bench, Div. 536, 315 Redfield v. Haight, 7 Ct. 31, 187 Redfield v. Haight, 27 Com. 31, 30, 82 Reed, Dewey v. 40 Barb. (N. Y.) 16, 331 Reed v. Eva,ns, 17 Ohio, 128, 68, 170 Reed v. Fish, 59 Me. 358, 137 Reed v. Holcomb, 31 Conn. 360, 53 Reed, McNeal v. 7 Irish Ch. Rep. 251, 275 Reed v. Nash, 1 Wils. 305, 40 Reed v. Norris, 2 Mylne & Craig, 361, 182 Reed, Patterson v. 7 Watts & Serg. (Pa.) 144, 160 Reed v. Sidener, 32 Ind. 373, 360 Reed, Sotheren v. 4 Harris & Johns. (Md.) 307, 270 Reed, "White v. 15 Conn. 457, 78, 136 Reed, Worcester Bank v. 9 Mass. 267, 146 Rees V. Berrington, 2 Ves. Jr. 540, 205, 317 Reese, Steele v. 6 Terg. (Tenn.) 263, 462 Rees's Admr. WUliamson's Admr. V. 15 Ohio, 575, 259 Reeves v. Steele, 2 Head (Tenn.) 647, 500 ReeSer, Ohio Life Ins. & Trust Co. V. 18 Ohio, 35, 284 Regina v. Miller, 20 Up. Can. Q. B. R. 485, 144 Regina v. Pringle, 32 Up. Can. Q. B. R. 308, 474 Reitz V. People, 72 111. 435, 493 Reigart v. White, 52 Pa. St. 438, 1 Reiner, Bamback v. 8 Minn. 59, 199 Section Reid V. Cox, 5 Blackf. (Ind.) 312, 511 Reid V. Flippen, 47 Ga. 273, 199, 296 Reid V. Jackson, 1 Ala. 207, 488 Reid, Lock v. 6 Up. Can. Q. B. R. (0. S.) £95, 74 Reid V. Watts, 4 J. J. Marsh. (Ky.) 440, 296 Rembert, Griffin v. 2 Richardson, N. S. (So. Car.) 410, 96, 175 Remsenc. Beckman, 25 New Tork, 552, 206 Remsen v. Graves, 41 New Tork, 471, 31, 319 Remington, Clark v. 11 Met. (Mass.) 361, 163 Rendell, Bowser v. 31 Ind. 128, 231, 332 Renfto, Gates v. 1 La. An. 569, 197 Reno V. Tyson, 24 Ind. 56, 497 Respess, Farrow v. 11 Ired. Law (Nor. Car.) 170, 84 Respublica v. Gaoler of Philadel- phia, 2 Teates (Pa.) 263, 427 Reusch ». Demass, 34 Mich. 95, 418 Reuss V. Picksley, Law Rep. 1 Exch. 342, 75 Rey V. Simpson, 22 Howard (U. S.) b41, 152, 153 Reynes v. Zacharie's Succession, 10 La. (Curry,) 127, 320 Reynolds, Brady v. 13 Cal. 51, 148,341 Reynolds, Brainard v. 36 Vt. 614, 83 Reynolds ». Dechaums 24 Tex. 174, 4 Reynolds, Douglass e. 7 Peters, 113, 78, 80, 134, 157, 163, 168, 384 Reynolds v. Douglass, 12 Peters, 497, 172, 173, 175 Reynolds v. Edney, 8 Jones' Law (Nor. Car.) 406, 173 Reynolds, Farmers Bank of Canton V. 13 Ohio, 85, 390 Reynolds, Griffith v. 4 Gratt. (Va.) 46, 253 Reynolds v. Hall, 1 Scam. (111.) 35, 470 Reynolds v. Harral, 2 Strobhart Law (So. Car.) 87, 441 Reynolds, Hershler v. 22 Iowa, 152, 325 Reynolds, Jenkins v. 6 Moore, 86, 68 TABLE OF CASES. cxxy Section Reynolds, Jenkins v. 3 Broderip & Bing. 14, 68, 71 Eeynolds v. Magness, 2 Iredell Law (Nor. Car.) 26, 441 Eeynolds, Sheldon v. 14 La. An. 703, 350 Reynolds v. Skelixjn, 2 Texas, 516, 181 Reynolds, State v. 3 Mo._ 70, 486 Reynolds v. "Ward, 5 Wend. 501, 307 Reynolds v. Wheeler, 10 J. Scott (N. S.) 561, 225 Reynolds, Williams v. 11 La. (6 Curry) 230, 113, 195 Rhodius, State v. 37 Texas, 165, 439 Rhinelander v. Barrow, 17 Johns. 538, 295 Rhea v. Gibson's Exr. 10 Gratt. (Va.) 215, 335 Rhett V. Foe, 2 How. (U. S.) 457, 172 Rhoads v. Frederick, 8 Watts (Pa.) 448, " 336 Rhodes v. Hart, 51 Ga.,320, 833 Rhoads, Keller v. 39 Pa. St. 513, 199 Rhoades, Sherrod v. 5 Ala. 683, 225 Rhoades, State v. 7 Nevada, 434, 473 Rhoades, State v. 6 Nevada, 352, 443, 445, 522 Rice's Appeal. 79 Pa. St. 168, 282 Rice, Baird v. 1 Call. (Va.) 18, 378 Rice V. BaiTy, 2 Cranch C. C. 447, 64 Rice V. Carter, 11 Ired. Nor. Car.) 298, 52 Rice, Clapp v, 15 Gray (Mass.) 557, 241, 255 Rice, Clapp v. 13 Gray, 403, 151, 226 Rice V. Downing, 12 B. Mon. (Ky.) 44, 205 Rice, Everly v. 20 Pa. St. 297, 872 Rice V. Filene, 6 Allen, 230, 103 Rice, Hayden v. 18 Vt. 353, 226 Rice, Henderson v. 1 Cold. (Tenn.) 223, 7 Ricei). Kirkman, 3Huinph. (Tenn.) 415, 515 Rice V. Morton, 19 Mo. 263, 27, 383 Rice, Munford v. 6 Munf. (Va.) 81, 141 Rice V. Rice, 14 B. Mon. (Ky.) 335, 184 Rice V. Simpson, 9 Heisk. (Tenn.) 809, 504 Section Rice, Smith v. 27 Mo. 505, 27, 107, 326 Rice V. Southgate, 16 Gray, 142, 177 Rice, Whitaker v. 9 Minn. 13, 120 Rich, Brackett v. 23 Minn. 485, 83, 169 Richter's Estate, in re 4 Bankr. Reg. 222, 409 Richter v. Cummings, 60 Pa. St. 441, 270 Richard, Stoppani v. 1 Hilton (N. Y.) 509, 6 Richwine v. Scovill, 54 Ind. 150, 86 Richmond v. Marston, 15 Ind. 134, 260 Richmond o. Standclift, 14 Vt. 258, 363 Richards, Bank of Newbury v. 35 Vt. 281, 94 Richards v. Commonwealth, 40 Pa. St. 146, 392 Richards, Mason v. 12 Iowa, 73, 417 Richards v. Sirams, 1 Dev. & Batt. Law (Nor. Car.) 48, 225 Richards v. Storer, 114 Mass. 101, 407 Richards, Walker v. 39 New Hamp. 259, 62, 77 Richards, Walker v. 41 New Hamp. 388, 64 Richards v. Warring, 4 Abbott's Rep. Omitted Cas. 47, 150 Richardson, Austin «>. 1 Gratt. (Va.) 310, 15 Richardson, Bradley v. 23 Vt. 720, 57 Richardson, Cross v. 30 Vt. 647,' 55 Richardson, Cross v. 30 Vt. 641, 50 Richardson, Dougherty v. 20 Ind. 412, 27 Richardson, Emery v. 61 Me. 99, 303 Richardson, Florance v. 2 La. An. 663, 460 Richardson, Hunter v. 1 Duvall (Ky.)247, 275 Richardson, Mclver v. 1 Maule & Sel. 557, 162 Richardson, Mitchum v. 3 Strob. Law (So. Car.) 254, 359 Richardson, Nelson v. 4 Sneed (Tenn.) 307, 156 Richardson, Padkard v. 17 Mass. 122, 68 CSX71 TABLE OF CASES. Section Richardson, Price v. 15 Mees. & Wel3. 539, 71 Richardson, Roberts v. 39 Iowa, 290, 296 Richardson, Sinclair v. 12 Vt. 33, 63 Richardson, Vinal v. 13 Allen, 521, 9,172 Ricks, Bunting v. 2 Dev. & Bat. Bq. (Nor. Car.) 130, 204 Ricks, Grice v. 3 Dev. Law (Nor. Car.) 62, 168 Riker, Strong v. 16 Vt. 554, 151, 153 Ridgway, Governor v. 12 111. 14, 469 Ridley, Niohol v. 5 Terg. (Tenn.) 63, 66 Ridenhour, Hawkins . "Waldo, 2 Cal. 485, 148 Riggs, Lewis v. 9 Texas, 164, 503 Riggs, Moakley v. 19 Johns. 69, 84 Riley v. Gerrish, 9 Cush. 104, 153 Riley v. Gregg, 16 Wis. 666, 17, 309 Riley v. Johnson, 8 Ohio, 526, 353 Riley, McMuUen v. 6 Gray, 500, 38 Riley, Phillips v. 27 Mo. 886, 506 Riley, Waters v. 2 Harris & Gill • (Md.) 305, 248 Rindge v. Judson, 24 New York, 64, 133 Rines, Smith ». 32 Me. 177, 197 Ringgold V. Newkirk, 8 Ark. (Pike) 96, 168 Rindskopf v. Doman, 28 Ohio St, 516, 119, 300 Section Risdon, Commonwealth v. 8 Phila. (Pa.) 23, 461 Risley v. Brown, 67 NewTork, 160, 117 Ritchie, Clark v. 11 Grant's Ch. R. 499, 350 Ritchey, Hollinsbee v. 49 Ind. 261, 194 Ritenour v. Mathews, 42 Ind. 7, 194 Rittenhouse v. Kemp, 37 Ind. 258, 302 Rittenhouse v. Levering, 6 Watts & Serg. (Pa.) 190, 267, 276 Ritter v. Hamilton, 4 Texas, 325, 503 Rives V. McLosky, 5 Stew. & Port. (Ala.) 330, 214 Rives, Winston v. 4 Stew. & Port. (Ala.) 269, 394 Rix, Gibson v. 82 Vt. 824, 289 Roane, Adams v. 7 Ark. (2 Eng.) 360, 505 Robb, Boynton v. 22 lU. 525, 413 Roby, Smith v. 6 Heisk. (Tenn.) 546, ' 418 Robert, SloooiqJ) v. 16 La. (Curry) 173, 434 Robeson v. Roberts, 20 Ind. 155, 879, 382 Robertson v. Coker, 11 Ala. 466, 363 Robertson v. Findley, 31 Mo. 884, 7 Robertson, Jenkins v. 2 Drewry, 851, 27 Robertson, May ». 13 Ala. 86, 363 Robertson v. Maxcey, 6 Dana (Ky.) 101, 249 Robbins v. Ayres, 10 Mo. 538, 52 Robbins, Chambers v. 28 Conn. 544, 54 Robbins, Chilton v. 4 Ala. 228, 302 Robbins, Glover v. 49 Ala. 219, 331 Robbins, Governor v. 7 Ala. 79, 462 Robbins, Post v. 85 Iowa, 208, 352, 871 Robinson, Ashford v. 8 Ired. Law (Nor. Car.) 114, 53, 68, 84, 119 Robinson, Boulware v. 8 Texas, 327, 181 Robinson, Broughton v. 11 Ala. 922, 259 Robinson, Cassitys v. 8 B. Mon. (Ky.) 279, 518 Robinson, Cathcart v. 5 Peters, 264 352 TABLE OF OASES. CXXVll Section Rotinsont). Dale, 38 Wis. 380, 318 Robinson v. Garth, 6 Ala. 204, 76 Robinson v. Gee, 1 Vesey, Sr. 251, 21, 105 Robinson, Hall v. 8 Ired. Law (Nor. Car.) 56, 283 Robinson v. Hodge, 117 Mass. 222, 496 Robinson v. Lane, 14 Sm. & Mar. (Miss.) 161, 48 Robinson, Lidderdale v. 2 Brock- enbrongh, 159, 269 Robinson v. Ljrle, 10 Barb. (N. T.) 512, , 226 Robinson v. Miller, 2 Bush (Ky.) 179, 307 Robinson, North v. 1 Duvall (Ky.) 71, 58 Robinson v. Offutt, 7 T. B. Monroe (Ky.) 540, 119, 316 Robinson v. Plimpton, 25 New York, 484, 401 Robinson, Rucker v. 38JAo. 154, 329 Robinson v, Sherman, 2 Gratt. (Va.) 178, 406 Robinson, State Bank v. 13 Ark. (8 Eng.) 214, 125 Roberts v. Adams, 6 Port. (Ala.) 861, 254 Roberts v. Bane, 32 Texas, 385, 328 Roberts, Brown v. 14 La. An. 256, 312 Roberts, Caldwell v. 1 Dana (Ky.) 855, 254 Roberts, Clark v. 26 Mich. 506, 16 Roberts v. Colvin, 3 Gratt. (Va.) 358, 296 Roberts, Dunning v. 35 Barb. (N. Y.) 463, 75 Roberts, Eddy ». 17 Bl. 505, 48 Roberts v. Green, 31 Ga. 421, 426 Roberts v. Griswold, 35 Vt. 496, 9, 100 Roberts, Hunt v. 45 New York, 691, 114 Roberts v. Jenkins, 19 La. (Curry) 453, 17 Roberts, Lillys 58 Ga. 363, 375, 380 Roberts v. Miles, 12 Mich. 297, 211 Roberts, Moor v. 3 J. Scott (N. S.) 830, 112 Roberts, Morton v. 4 T. B. Mon. (Ky.) 491, 316 Section Roberts v. Richardson, 39 Iowa, 290, 296 Roberts v. Riddle, 79 Pa. St. 468, 86 Roberts, Robeson v. 20 Ind. 155, 379. 382 Robertas. Sayre, 6T. B. Mon. (Ky.) 188, 275 Roberts, Simpson v. 85 Ga, 180, 441 Roberts v. Stewart, 81 Miss. 664, 296, 298, 306, 309 Roberts, Thomjison v.' 17 Irish Com. Law Rep. 490, 146 Roberts, WOey v. 27 Mo. 388, 66 Rockefeller, Stone v. 29 Ohio St. 625, 83 Rockwood, Merriam v. 47 New Hamp. 81, 854 Rockingham Bank v. Claggett, 20 New Hamp. 292, 278 Rock, Thayer v. 13 Wend. 53, 88 Roche I). Chaplin, 1 Bailey (So. Car.) 419, 44 Rochester City Bank, Talman v. 18 Barb. 123, 3 Rochester v. Randall, 105 Mass. 295, 466 Rodgers, Hall v. 7 Humph. (Tenn.) 586, ' 53 Rodgers v. McCluer's Admr. 4 Gratt. (Va.) 81, 268 Roddie, Sevier v. 51 Mo. 580, 179, 528 Rodes V. Crockett, 2 Yerg. (Tenn.) 346, 213 Roe V. Hough, 3 Salk. 14, 52 Roe, IngersoU v. 65 Barb. (N. Y.) 846, 5 Rogers, Commonwealth v. 53 Pa. St. 470, 501 Rogers, Dickey v. 19 Martin (La.) N. S. 588, 178, 198 Rogers, East River Bank v. 7 Bosw. (N. Y.) 493, 170 Rogers, Exeter Bank v. 7 New Hamp. 21, 344 Rogers, Hanford v. 11 Barb. (N. Y.) 18, 73 Rogers, Musket v. 8 Scott, 51, 206 Rogers, Musket v. 5 Bing. (N. C.) 728, 206 CXXTlll TABLE OB" OASES. Section Rogers f . School Ti'ustees, 46 HI. 428, 18, 209, 370 Rogers, Smith v. 14 Ind. 224, 82 Rogers, Tobias v. 13 New Tork, 59, ■ ^ 240 Rogers v. Waters, 2 Gill & Johns. . (Md.) 64, 54 Rogers, Wyke v. 1 De Gex, Macn. & Gor. 408, 318, 329 Rolfe V. Lamb, 16 Vt. 514, 110 Rolleston, Carstairs v. 1 Marshall, 207, 124 Rolt, General Steam Navigation Co. «. 6 J. Soott(N. S.)550, 345 Rolston V. Click, 1 Stew. (Ala.) 526, 10 Roman v. Peters, 2 Robinson (La.) 479, 472 Romeyn, Draper v. 18 Barb. (N. T.) 166, , 296 Root, Amherst Bank v. 2 Met. (Mass.) 522, 144, 869, 474, 479, 519 Root, Colt V. 17 Mass. 229, 68 Root V. Dill, 38 Ind. 169, 507 Rook, Lee v. Mosely, 318, 205 Roots V. McCarty, 21 Howard (U. S.)432, 225 Roper, Garnett v. 10 Ala. 842, 126 Rorke, Rowland v. 4 Jones (Nor. Car.) 337, 53 Rose's Exrs. Watson v. Ala. 292, 284 Rosenthal, Bailey v. 66 Mo. 385, 400 Rosenbaum v. Gunter, 2 E. D. Smith (N. Y.) 415, 68 Rose, Hillary v. 9 Phila. (Pa.) 139, 84 Rose \\ Madden, 1 Kansas, 445, 17, 617 Rose, TiUotson v. 11 Met. (Mass. ) 299, 176 Rose V. Williams, 6 Kansas, 483, 17, 306 Ross V. Burton, 4 Up. Can. Q. B. R. 367, 131 Ross, Chapman v. 12 Leigh (Va.) 565, 46 Ross V. Clore, 3 Dana (Ky.) 189, 200 Rosa, Commissioners of Berks Co. V. 3 Binney (Pa.) 520, 377 Ross, Devers v. 10 Gratt. (Va.) 252, 327 Ross V. Jones, 22 Wallace, 576, 508 Ross, Salyers v. 15 Ind. 130, 224 Section Ross, Taylor v. 3 Terg. (Tenn.) 330, 68, 170 Ross, TeafP v. 1 Ohio St. 469, 389 Ross V. Wilson, 7 Smedes & Mar. (Miss.) 753, 282 Ross V. Woodville, 4 Munf. (Va.) 324, 359 Roth V. Miller, 15 Serg. & Rawle, 100, [48 ■ Rounds, Phillips v. 33 Me. 357, 308, 822, 323 Routon's Admr. v. Lacy, 17 Mo. 399, 504, 512 Rowe, Besshears v. 46 Mo. 501, 9 Rowe V. Buchtel, 13 Ind. 881, 506 Rowe, Cross ». 22 New Hamp. 77, 94 Rowe, Ogden v. 3 E. D. Smith (N. T.) 312, 839 Rowe V. Whittier, 21 Me. 545, 62 Rowney, Ardem v. 5 Esp. 264, 53 Rowland v. Rorke, 4 Jones (Nor. Car,) 337, 53 Rowan v. Sharp's Rifle Co. 33 Conn. 1, 21, 338 Rowley, Hosea v. 57 Mo. 357, 806 Rowley Laval v. 17 Ind. 36, 272 Rowlett V. Bwbank, 1 Bush (Ky.) 477, \ 8 Royal Ins. Co. v. Davies, 40 Iowa, 469, 118 Royal Canadian Bank v. Payne, 19 Grant's Ch. R. 180, 21, 97 Royce, McVicar v. 17 Up. Can. Q. B. R. 529, 181 Roye, Kimball v. 9 Richardson Law (So. Car.) 295, 87 Royston v. Howie, 15 Ala. 309, 382 Ruan, Mahaska County ». 45, Iowa, 328, 478 Ruble V. Norman, 7 Bush (Ky.) 582, 289 Rucker v. Cammeyer, 1 Esp. 105, 76 Rucker, Frost v. 4 Humph. (Tenn.) 57, 515 Rucker v. Robinson, 38 Mo. 154, 329 Rucker, State v. 59 Mo. 17, 498 Rucks V. Taylor, 49 Miss. 652, 190, 199 RuddeU v. Childress, 31 Ark. 511, 504 TABLE OF OASES. CXXIJ Section Eudhall, Smith i;. 3 Foster & Fin. 143, 63 Eudolf, Mercliants Bank v. 5 Ne- braska, 527, 218 Rudolph, Piikins v. 36 111. 306, 416 Eollins, Freemans Bank v. 13 Mo. 202, 305 Rudd, Laub v. 37 Iowa, 617, 94 Rudd, Schoolfleld's Admr. v., 9 B. Mon. (Ky.) 291, 278 Rudy, Bank of HopkinsvUle v. 2 Bush (Ky.) 326, 268 Rudy V. Wolf, 16 Serg. & Kawle, (Pa.) 79, 84, 85 Rue, Hlbbs v. 4 Pa. St. 348, 109, 330 Ruggles, Coggeshall v. 62 111. 401, 109, 182 Ruggles V. Holden, 3 Wend. 216, 206 Ruggin's Exrs. of. Brown v. 3 I Kelly, (Ga.) 405, 27 Rumsey, Smith v. 33 Mich. 183, 255, 269 Runde.^Runde v. 59 III. 98, 49, 53 Rupert V. Grant, 6 Smedes & Mar. (Miss.) 433, 298 Rupp V. Over, 3 Brewster (Pa.) 133, 200 Ruas, Hale v. 1 Greenl. (Me.) 334, 440 Rushforth, ex parte, 10 Vesey, 409 205, 265, 266 Rush V. State, 20 Ind. 432, 82, 281 Russell V. Annable, 109 Mass. 72, 127 RueseU v. Ballard, 16 B. Mon. (Ky.) 201, 95 Russell V. Clark's Exr. 7 Cranoh, 69, 69, 78 Russell, Dillon v. 5 Nebraska, 484, 296 Russell V. Pailor, 1 Ohio St. 327, 232 Russell V. La Roque, 11 Ala. 352, 120, 191 Russell ». La Roque, 13 Ala. 149, 285 Russell, Montgomery v. 10 La. (Curry) 330, 184 Russell V. Moseley, 3 Brod. & Bing. 211, 9, 70 Russell, People v. 4 Wend. 570, 474 Russell, Shubrick's Exrs. v. 1 Dessaussure (So. Car.) 315, 319 I Section Russell, Teague v. 2 Stow. (Ala.) 420, 211 Russell, Western ». 3 Vesey &Bea. 187, 60, 75 Russell V. Wiggins, 2 Story Rep. 214, 67 Russell, Wright v. 2 W. Black- stone, 934, 99 Rutledge, Allison v. 5 Terg. (Tenn.) 193, 97 Rutherford, Admr. Burton v. 49 Mo. 255, 199 Ryan v. Shawneetown, 14 111. 20, 21, 337 Ryde v. Curtis, 8 Dow. & Ry. 62, 70 Ryde, Jones v. 5 Taunt. 488, 16 Sabin v. Harris, 12 Iowa, 87, 172 Sacramento Co. ii. Bird, 31 Cal. 66, 472 Sacramento v. Kirk, 7 Cal. 419, 336 Sackrider, Brady ,.. 1 Sandf. (N. Y.) 514, 62 Sadler v. Hawkes, 1 Roll. Abr. 27, pi. 49, 8 Saifold, Scott v. 37 Ga. 384, 305, 309 SafFold V. Wade's Exr. 61 Ala. 214, 282 Sage, Stocking v. 1 Conn. 519, 46 Sage V. Strong, 40 Wis. 575, 346 Sage V. Wilcox, 6 Conn. 81, 8, 39, 68, 168 Sager, Evers v. 28 Mich. 47, 397 Sailly V. Elmore, 2 Paige Ch. R. 497, 209, 296 Saint V. Ledyard, 14 Ala. 244, 277 Sailor, Daviess Co. Sav. Ass'n v. 63 Mo. 24, 218 Sale V. Darragh, 2 Hilton (N. T.) 184, 67 Saleski, Callahan v. 29 Ark. 216, 398 Salkeld v. Abbott, Hayes (Irish) 576, 273 Salts, Maxwell v. 4 Cold. (Tenn.) 293, 422 Salter's Creditors, Salter v. 6 Bush (Ky.) 624, 270 Salmond, Sargent v. 27 Me. 539, 258 Salyers v. Ross, 15 Ind. 130, 224 Salisbury v. Hale, 12 Pick. 416, 173 cxxx TABLE OF CASES. Section Saltenberry v. Louoks, 8 La. An. 95, 4.51 Salem Manf. Co. w. Brower, 4 Jones Law (Nor. Car.) 429, 173 Salmon, Clagett v. 5 Gill & Johns. (Md.) 314, 329, 337 Salmon v. Clagett, 3 Bland's Ch. R. (Md.) 125, 329 Salmon Falls Ins. Co. v. Goddard, 14 How. (U. S.) 447, 75, 76 Salmon Falls Manf. Co. v. Goddard, 14 How. (U. S.) 446, 66 : Sample v. Davis, 4 Greene (Iowa) 117, 483 ■Sample v. Martin, 46 Ind. 226, 154 . Sampson v. Barnard, 98 Mass. 359, 336 Sampson v. Hobart, 28 Vt. 697, 50 ; Samuel v. Withers, 16 Mo. 532, 363 ;Bamuel v. Zachery, A Ired. Law (Nor. Car.) 377, 252 "Samuell v. Howarth, 3 Merivale, 272, 209, 297 iSanbom v. Flagler, 9 Allen, 474, 75 Sanborn, Gookin v. 3 New Hamp. 491, 496 :Banbom, Neelson v. 2 New Hamp. 414, 68 ;Sands, Wayne v. Freem. 351, 5 .iSanders v. Bean, Busbee's Law (Nor. Car.) 318, 4^7 Sanders, Buck v. 1 Dana (Ky.) 187, 204 ■Sanders v. Clason, 13 Minn. 879, 52 Sanders w. Etcherson, 36 Ga. 404, 165 rSanders, Irwin v. 5 Terg. (Tenn.) 287, 397 Sanders, Thompson v. 4 Dev. & Bat. Law (Nor. Car.) 404, 230 Sanders v. Watson, 14 Ala. 198, 280 Sanderson v. Aston, Law Rep. 8 Exch. 73, 347. 368 •Sandersen v. Jackson, 2 Bos. & Pul. 238, 66 Sanderson v. Stevens, 116 Mass. 133, . 440 Sandilands ». Marsh, 2 Barn. & Aid. 678, 10 Sans V. People, 8 Oilman (111.) 327, 438 Banford, McNeilD..3 B.Mon. (Ky.) .11, 223 Seotioh Sanford». Norton, 14 Vt. 228, 151, 153 Sargent v. Salmond, 27 Me. 589, 258 Sasscer v. Young, 6 Gill & Johns. (Md.) 248, 380 Saunders, Beeker v. 6 Ired. Law (Nor. Car.) 380, 85 Saunders, O'Bannon v. 24 Gratt. ■ (Va.) 138, 485 Saunders, Perry v. 36 Iowa, 427, 375 Saunders v. Wakefield, 4 Bam. & Aid. 595, 6, 68 Saunderson v. Jackson, 2 Bos. & Pul. 238, 66, 75 Saunderson v. Jackson, 3 Esp. 180, 66,75 Saulet V. Trepagnier, 2 La. An. 427, 887 Savage's Admr. v. Carleton, 33 Ala. 448, 504 Savage, Doughty v. 28 Ct. 146, 850, 366 Savage, Leavitt v. 16 Me. 72, 327 Savage, Taylor v. 12 Mass. 98, 46, 231 Savage, WUder v. 1 Story, 22 163, 167, 173 Savery, McLott v. 11 Iowa, 823, 115 Savings Bank, Homer v. 7 Ct. 478, 284 , Savory, Carkinc. 14 Gray, 528, 102, 312 Sawtel, Harrison v. 10 Johns. 242, 46 Sawyer v. Bradford, 6 Ala. 572, 382 Sawyer v. Fernald, 59 Me. 500, 9 Sawyer, Miller v. 30 Vt. 412, 328 Sawyer, Weare v. 44 New Hamp. 198, 124, 352 Sawyers v. Hicks, 6 Watts (Pa.) 76, 826, 470 Sawyer's Admr. v. Patterson, 11 Ala. 523, 382 Saxton, Bissell v. 66 New York, 55, 466, 522 Saylors v. Saylors, 3 Heisk. (Tenn.) 525, 192, 282 Sayre, Roberts v. 6 T. B. Mon. (Ky.) 188, 275 Sayward, Smith v. 5 Greenl. (Me.) .504, 46, 50 Scanland, Jones v. 6 Humph. (Tenn.) 195, 445 Scanland v. Settle, 1 Meigs (Tenn.) 169, 261, 320 TABLE OF CASES. cxxxi Section Soraff, Allen v. 1 Hilton (N. Y.) 209, 62 Schook V. MiUer, 10 Pa. St. 401, 383 Sohoonmaker, Stockbridge v. 45 Barb. (N. Y.) 100, 111 Scheid v. Leibshultz, 51 Ind. 88, 15 Sobuyler, Putnam v. 4 Hun, 166 5 Scbaffer, Sibneyer v. 60 111. 479, 809. Scbmaelter, Scbmidfc v. 45 Mo. .502, 151 Scbnitter, Smarr v. 38 Mo. 478, 817 Rchultz V. Carter, Speer'a Eq. (So. Car.) 533, 278 Scbroeppell v. Shaw, 3 New York, 446, 209, 390 Schwaebe, Hoffmann v. 83 Barb. (N. Y.) 194, 217 Schuler, Breese v. 48 111. 829, 203 Scherster v. "Weissman, 63 Mo. 552, 472 Schloss V. White, 16 Cal. 65, 483 Schnitzell, Clay v. 5 Phila. (Pa.) 441, 227 Sohnitzell's Appeal, 49 Pa. St. 227 Schuyler, Putnam D. 4Hun(N.Y.) 166, 362 Schuyler, People v. 5 Barb. (N. Y.) 166, 484 Scholefield, Lawrie v. Law Rep. 4 Com. PI. 622, 133 Scholefield v. Templer, Johns. (Eng. Ch. 1) 155, 124 Scholefield v. Templer, 4 De Gex & Jones 429, 124 Schoolfield's Admr. ». Rudd. 9 B. Mon. (Ky.) 291, 278 Schofield V. Hustis, 9 Hun, 157, 497 Schofield, Kenworthy v. 2 Barn. & Cres. 945, 76 Schnell, Wilson Sewing Machine Co. V. 20 Minn. 40, 66, 78 Schneider v. Norris, 2 Maule & Sel. ' ■• 286, 66, 75 Schmidt ». Coulter, 6 Minn. 492, 236 Schmidts. Schmaelter, 45 Mo. 502, 151 School District, Riddel v. 15 Kan- sas, 168, 140 School Directors, Grim v. 51 Pa. St. 219, ' 357 Section School Trustees, Rogers v. 46 HI. 428, 18, 209, 370 Soovill, Richwine v. 54 Ind. 150, 86 Scoville, Alger v. 1 Gray, 391, 50, 58 Scott V. Bailey, 23 Mo. 140, 18 Scolt V. Bl-adford, 5 Port. (Ala.) 443, 506 Soott V. Dewees, 2 Texas, 158, 510 Scott II. Featherston, 5 La. An. 306, 261 Scott, Fuller v. 8 Kansas, 25, 8, 10, 74, 147, 173 Scott V. Hall, 6 B. Mon. (Ky.) 285, 309 Scott V. Harris, 76 Nor. Car. 205, 309 Scott, Janes «.'59 Pa. St. 178, 82, 84 Scott, Kleiser v. 6 Dana (Ky.) 187, 280 Scott, Leokie v. 10 La. (5 Curry) 412, 11 Soott, Macroiy v. 5 Wels. Hurl. & Gor. 907, 54, 56 Scott, Mackenzie v. 6 Bro. Pari. Cas. 280, 57 Soott, MoGonnell v. 15 Ohio, 401, 204 Scott, McGehee v. 15 Ga. 74, 492 Scott, Mullen v. 9 La. An. 173, 530 Scott V. Nichols, 27 Miss. 94, 199 Scott V. Saffold, 37 6a. 384, 805, 309 Scott V. Sta-e, 46 Ind. 203, 453 Scott, State v. 20 Iowa, 63, 428, 430 Scott, Stow V. 6 Car. & Payne, 241, 64 Scott V. Thomas, 1 Scam. (111.) 58, 50 Soott, Woodbridge v. 8 Brevard, (So. Car.) 193, 191 Scroggins t>. Holland, 16 Mo. 419, 359 Screws V. Watson, 48 Ala. 628, 423 Scudder, Barker v. 56 Mo. 272, 58, 169 Scudder, Menard v. 7 La. An. 385, 118, 131, 157, 175 Scully, Hiltz V. 1 Cine. 554, 63 Scully V. Kirkpatrick, 79 Pa. St. 324, 428 Sculthorpe, Mines v. 2 Camp. 215, 77 Seabury v. Hungerford, 2 HiU, 80, 150 Seaman v. Drake, 1 Caines, Rep. 9, 126 Seawell v. Cohn, 2 Nevada, 308, 323 Searles, Wolleshlare v. 45 Pa. St. 45, 207 Seals, Bailey v. 1 Harrington (Del.) 367, , 429 CXXXll TABLE OF CASKS. Section Sears, Agawam Bank ». 4 Gray, 95, ' 333 Sears v. Brink, 3 Johns. 210, 68 Sears v. Bearsh, 7 La. An. 539, 404 Sears v. Van Dusen, 25 Mich. 351, 351, 295 Seaver v. Bradley, 6 Greenl. fMe.) 60, 174 Seaver, Hayes v. 7 Greenl. (Me.) 237, 496 Seaver v. Young, 16 Vt. 658, 213 Seacord v. Morgan, 3 Keyes (N. Y.) 636, ■ 393 Seacord v. Morgan, 4 Abb. Rep. Om. Cas. 172, _ 393 Searcy, Johnson v. 4 Yerg. (Tenn.) 182, 296 Searcy, Pyke v. 4 Porter (Ala.) 52, 312, 501 Searcy, Thomson v. 6 Port. (Ala.) 393, 494 Sebastian v. Johnson, 2 Duvall (Ey.) 101, 13 Second National Bank v. Gay lord, 34 Iowa, 246, 173 Sedgvriok, Amicable Mutual Life Ins. Co. V. 110 Mass. 163, 341, 344 Seely, Bonney v. 2 Wend. 481 181, 182, 187 Seely v. People, 27 lU. 173, 358 Seeley v. Brown, 14 Pick. 177, 435 Seeley, Campau v. 30 Mich. 57, 425 Seeley, Poppenhousen v. 3 Abb. Rep. Om. Cas. 615, 403 Seitz, Fulmer v. 68 Pa. St. 237, 331 Seibert v. Thompson, 8 Kansas, 65, 233, 282 Seibert v. True, 8 Kansas, 52, 282 Seibrecht, Clapp v. 11 La. An. 528, 405 Selby, Selby «.'3 Merivale, 2, 75 Selman, Justices v. 6 Ga. 432, 394, 493 Sellers, Batturs v. 5 Harr. & Johns. (Md.) 117, 76 Sellers v. Jones, 22 Pa. St. 423, 384 Selser v. Brock, 3 Ohio St. 302, 331, 358 Semple v. Atkinson, 64 Mo. 504, 317 Semple, Danforth v. 7 Chicago Legal News, 203, 309 Section Semple, Uhler v. 5 C. E. Green (N. J.) 288, 188 Sommes, Bums v. 4 Cranch Cir. Ct. 702, • 157 Setou V. Slade, 7 Vesey, 265, 75 Settle, Scanland v. Meigs (Tenn.) 169, 261, 320 Sevier v. Roddie, 51 Mo. 580, 179, 528 Sewall V. Fitch, 8 Cowen, 215, 76 Sfewell, Hill V. 27 Ark. 15, 388, 486 Sewall, Lee v. 2 La. An. 940, 317 Sewall, Wright v. 9 Robinson (La.) 128, 106 Seymour, Harrison ». Law Rep. 1 Com. PI. 518, 346 ' Seymour, Morgan v. 1 Reports in Chancery 120, 263 Seymour e. Mickey, 15 Ohio St. 515, 148, 153 Seymour, Stone v. 15 Wend. 19. 294 Seymour, Welch v. 28 Ct. 387, 119, 139 Sbankhn, Patton v. 14 B. Mon. (Ky.) 13, 333 Shain, Bragg v. 49 Cal. 131, 845 Shane v. Francis, 30 Ind. 92, 487 Shanks, Jasper County v. 61 Mo. 332, 513 Shackleford, Weatherby v. 37 Miss. 559, 412 Shackford, Phillips v. Cro. Eliz. 455, 8 Sharman v. Brandt, 40 Law Jour. (N. S.) 312, 76 Shaeffer, Pittsburg, Ft. W. & C. R. R. Co. V. 59 Pa. St. 350, 869 Sharpe v. Speokenagle, 8 Serg. & Rawle(Pa.)463, 126 Shannon ». McMuUin, 25 Gratt. (Va.) 211, 878 Sharp's Rifle Co. Rowan ». 33 Conn. 1, 21, 338 Sharp, Ashby v. 1 Littell (Ky.) 156, 394 Sharp V. Bedell, 5 Gilman (111.) 88, 393 Sharp I). Pagan, 3 Sneed (Tenn.) 541, 306 Sharp, Gage v. 24 Iowa, 15, 354 Sharp, Spring Hill Mining Co. u. 3 Pugsley (New Bruns.) 603, 476 TABLE OF CASES. CXXXlll Section Sharp V. United States, 4 Watts (Pa.) 21, 357, 442 Shaver v. Allison, 11 Grant's Ch. R. 355, 845 Shaver, Readfield v. 50 Me. 36, 294, 355 Shawneetown, Eyan v. 14 111. 20, 21, 337 Shaw, Bashford v. 4 Ohio St. 264, 85, 173 Shaw V. Binkhard, 10 Ind. 227, 310 Shaw, Caton v. 2 Harris & Gill (Md.) 13, 165 Shaw, Grant v. 16 Mass. 341, 53 Shaw, Hodgson v. 3 Mylne & Keen, 183, 273, 279 Shaw, Kerr v. 13 Johns. 236, 68 Shaw V. Loud, 12 Mass. 447, 184 Shaw V. McFarlane, 1 Ired. Law (Nor. Car.) 216, 870 Shaw, Schroepell v. 3 New York, 446, 209, 390 Shaw, Sherburne v. 1 New Hamp. 157, 67 Shaw ». The First Associated Re- formed Presbyterian Church, 89 Pa. St. 226, 316 Shaw V. Vaudusen, 5 Up. Can. Q. B. R. 858, 98 Shaw V. Woodcock, 7 Barn. & Cres. 73, 38 Sheffield, Bothwell v. 8 Ga. 569, 488 Shehan v. Hampton, 8 Ala. 942, 504, 517 Sheid V. Stamps, 2 Sneed (Tenn.) 172, 67 Shelby, Crowdus ». 6 J. J. Marsh. (Ky.)61,- 178 Shelby, Governors. 2 Blaokf. (Ind.) 26, 530, 532 Shelby t-. Governor, 2 Blackf. (Ind.) 289, 518 Shelden, Cady t). 38 Barb. (N. T.) 103, 82, 83 Shelden, Smith v. 35 Mich. 942, 1, 19, 23 Sheldon v. Reynolds, 14 La. An. 703, 350 Shelton v. Farmer, 9 Bush (Ky.) 314, 241 Section Shelton v. Hurd, 7 Rhode Is. 408, 27, 209 Shelton, Weimar v. 7 Mo. 237, 202 Shewell v Knox, 1 Dev. Law (Nor. Car.) 404, 157 Sherley, Farmers & Drovers Bank «. 12 Bush (Ky.) 804, 265 Sherbert, Mt. Olivet Cemetery Co. V. 2 Head (Tenn.) 116, 52 Sherburne v. Shaw, 1 New Hamp. 157, 67 Sherill, Benedict v. Lalor's Sup. to Hill & Denio, 219, 96 Sherrell v. Goodrum, 3 Humph. (Tenn.) 419, 466 Sherry v. State Bank, 6 Ind. 397, 393 Sherraden o. Parker, 24 Iowa, 28, 386 Shekan, Martin v. 2 Colorado, 614, 206 Sherrod v. Rhodes, 5 Ala. 683, 225 Sherrod i). Woodard, 4 Devereux Law (Nor. Car.) 360, ., 259 Sherman v. Black, 49 Vt. 198, 230 Sherman, Hill v. 15 Iowa, 365, 504 Sherman, Robinson v. 2 Gratt. (Va.) 178, 406 Sherman v. State, 4 Kan. 570, 4, 486 Sherman, Walker v. 11 Met. (Mass.) 170,' 8 Sherman, Woods v. 71 Pa. St. 100, 85 Shepard, Johnson v. 35 Mich. 115, 83 Shepard, Loveland v. 2 Hill (N.T.) ' 139, 84 Shepard v. Ogden, 2 Scam. (111.) 257, 199 Shepard v. Pebbles, 38 Wis. 373, 583 Shepard v. Phears, 35 Texas, 763, 82 Shepard v. Taylor, 35 Texas, 774, 108 Shepherd, Brooks v. 4 Bibb (Ky.) 572, 421 Shepherd, Wise v. 18 111. 41, 276 Sherwood v. Collier, 3 Dev. Law, (Nor. Car.) 380, 270 Sherwood, Dart v. 7 Wis. 523, 115 Sherwood, Hull v. 59 Mo. 172, 248 Sherwood, Lyman v. 20 Tt. 42, 94 Sherwood, Ranson v. 26 Ct. 487, 148, 585, 537 CXXXIV TABLE OF OASES. Section Sherwood v. Stone, 14 New York, 267, 57 Shields, Barrow ». 13 La. An. 57, 370 Shields, Davis v. 26 Wend. 354, 75 Shields, Davis v. 24 Wend. 322, 75 Shields v. Middleton, 2 Cranch, C. C. 2:i5, 53 Shields v. Smith, 8 Bush (Ky.) 601, 500 Shirley, People v. 18 Cal. 121, 439 Shirley, Shirley D. 7 Blackf. (Ind.) 452, 75 Shine, Central Savings Bank v. 48 Mo. 456, 160 Shinn jj.-Budd, 1 McCarter, (N.J.) 234, 260 Shippen's Admr. v. Clapp, 36 Pa. St. 89, 384 Shimer v. Hightshue, ' 7 Blaokf. (Ind.) 238, 393 Shimer v. Jones, 47 Pa. St. 268, 207 Shipherd, Backus v. 11 Wend. 629, 85 ShotFner v. Pogleman, Winston Law & Eq. (No. Car.) 12, 276 Shower, Coldham v. 3 Man. Gr. & Suott, 312, 73 Shorter, Jones v. 1 Kelly (Ga.)2y4, 46 Shores, Forest v. 11 La. (Curry) 416, 176 Shortrede v. Cheek, 1 Add. & Ell. 57, 70, 72 Shook V. People, 39 111. 443, 430 Shook V. Vanmater, 22 Wis. 507, 46, 50 17 Shriver v. Lovejoy, 32 Cal. 574, Shryock, Weaver v. 6 Serg. & Rawle, (Pa.) 262, Shrempp, Heath v. 22 La. An. 167, Shrout, Hutohoraft v. 1 T. B. Mon. (Ky.) 206, 461, 491 Shubrick's Exrs. v. Russell, 1 Des- saussure (So. Car.) 315, Skip i). Edwards, 9 Mod. 438, Shupe V. Galbraith, 32 Pa. St. 10, Shumway, Brookins v. 18 Wis. 98 Shuttleworth, Watts v. 5 Hurl. & Nor. 235, 352, 373, 387 Skidmore, People v. 17 Cal. 260, 280 Skidmore v. Taylor, 29 Cal. 619, 235 Skofield V. Haley, 22 Me. 164, 173 117 487 319 346 8 312 Section Skiff ». Cross, 21 Iowa, 459, 277 Skillett V. Fletcher, Law Rep. 2 Com. PI. 469, 346 Skillett V. Fletcher, Law Rep. 1 Com. PI. 217, 346 Skelton, Reynolds v. 2 Texas, 516, 181 Skeen, City of Indianapolis v. 17 Ind. 628, 104 Skinner, Cleveland p. 56 111. 500, 440 Skmner v. Conant, 2 Vt. 453, 63 Skinner, Whittle ^. 23 Vt. 531, 306 Skilien; Brobst v. 16 Ohio St. 382, 458 Skillem, Jenkins v. 5 Yerger (Tenn.) 288, 404 Skillin V. Merrill, 16 Mass. 40, 241 Si Gordon v. 2 McCord Ch. (So. Car.) 151, 76 Sibberns, Mayor of New York v. 3 Abbot's Rep. Om. Cas. 266, 469 Sibley v. McAlHster, 8 New Hamp. 389, 392 Sickles, City of St. Louis v. 52 Mo. 122, 483 Sickler, Clark v. 64 New York, 231, 295 Sidney, Mapes v. Cro. Jac. 683, . 8 Sidney Road Co. v. Holmes, 16 Up. Can. Q. B. R. 268, 357 Sidner, Reed v. 32 Ind. 373, 360 Sievewright v. Archibald, 17 Ad. & Ell. (N. S.) 103, 66 Signiago, Picott). 22 Mo. 587, 28 Sigourney, Caldwell e. 19 Ct. 37, 120 Sigourney, Clark v. 17 Cfc. 511, 120 Sigourney v. WethereU, 6 Met. (Mass.) 553, 119,319 Sigourney v. WethereU, 6 Met. Car.) 19, 180 Silence, Brewster v. 8 New York, 2U7, 70, 74 Sill V. Leslie, 16 Ind. 236, 149, 153 Silly, Mayor of Dai-tmouth v. 7 Ell. & Black. 97, 471 Silk V. Eyre, Irish Rep. 9 Eq. 393, 280 Silliman, National Exchange Bank V. 65 New York 475, 281 Silmeyer v. Schaifer, 60 111. 479, 309 TABLE OF CASES. CXXXV Section Silvey v. Dowell, 53 III. 260, 234 Simeon v. Cramm, 121 Mass. 492, 407 Simond, Ludlow v. 2 Gaines' Cas. in Error 1, 79, 345 Simon v. Steele, 36 New Hamp. 73, 171 Simon v. Motives, 3 Burrow, 1921, 76 Simon v. Motivoa, 1 W. Blacljstone, 599, 76 Simons v. Steele, 36 New Hamp. 73, 66, 73, 104 Simmons v. Barefoot's Exrs. 2 Hay. (Nor. Car.) 606, 5 Simmons v. Gates, 56 Ga. 609, 286 Simmons, Farebrotheru. 5 Bam. & Aid. 333, 76 Simmons v. Guise, 46 Ga. 493, 316 Simmons v. Keating, 2 Starkie, 375, 7 Simpson v. Blunt, 42 Mo. 542, 508 Simpson, Catton v. 8 Add. & EU. 136, 198 Simpson, Christie «. 1 [Rich. Law, (So. Gar.) 407, 76 Simpson, Harris v. 4 LitteU (Ky.) 165, 434 Simpson, Manley v. 2 Tyrwh. 85, 364 Simpson v. Manley, 2 Grompton & Jer. 12, 134, 864 Simpson v. Nance, 1 Spears (So. Car.) 4, 47, 49 Simpson v. Penton, 2 Cromp. & Mees. 430, 63 Simpson, Rey v. 22 How. (TJ. S.) 341, 152, 153 Simpson, Rice v. 9 Heisk. (Tenn.) 809, 504 Simpson v. Roberts, 35 Ga. 180, 441 Simpson, Waters v. iSGilman (III.) 570, 824 Simpson, Wright i). 6 Vesey, 714, 205 Simpson, United States v. 3 Pen. & Watts (Pa.) 437, 296 Simpson's Exr. v. Bovard, 74 Pa. St. 351, 3.33, 357 Sims, Creath's Admr. v. 5 How. (U. S.) 192, 296 Sims, Gaff p. 45 Ind. 262, 1, 168 Sims, Gordon v. 2 McCord Ch. (So. Car.) 151, 76 Section Simms, Richards v. 1 Dev. & Batt. Law (Nor. Gar.) 48, 225 Simsou V. Cooke, 9 Moore, 558, 98 Singer, Mundorff v. 5 Watts (Pa.) 172, 391 Singer V. Troutman, 49 Barb. (N. Y.) 182, 207 Singstack 'v. Harding, 4 Harr. & Johns. 186, 76 Singleton v. Townsend, 45 Mo. 379, 259 Sinclair v. Richardson, 12 Vt. 33, 63 Singley v. Cutter, 7 Conn.- 291, 72 Sisson V. Barrett, 2 New York, 406, 17 Slade, Seton v. 7 Vesey, 265, 75 Slagee, Jefferson County p. 66 Pa. St. 202, 63 Slawson v. Ker, 29 La. An. 295, 444 Slater, Emerson v. 22 How. (U. S.) 28, 46, 56 Slattery v. Police Jury, 2 La. An. 444, 388 Slee, Dunn v. 1 Moore, 2, 244 Sledge, Jennings v. 3 Kelly (Ga.) 128, 437 Sleeper, Lane v. 18 New Hamp. 299, 188 Slevin v. Morrow, 4 Ind. (2 Porter) 425, 384 Slingerland v. Morse, 7 Johns. 463, 50 Sloan, Anderson v. 1 Colorado, 484, 404 Sloan V. Creasor, 22 Up. Can. Q. B. R. 127, 340 Sloan, Justices v. 7 Ga. 31, 494 Sloan V. Wilson, 4 Harr. & Johns. 322, 68 Sloane, State v. 20 Ohio, 327, 453 Slocomb V. Robert, 16 La. (Curry) 173, 443 Sloo, Bank of Illinois v. 16 La. (Curry) 539, 157, 160 Sloper, People v. 1 Cummins, (Idaho) 183, 435 Sluby V. Ohamplain, 4 Johns. 461, 197 Small, Clark v. 6 Yerg. (Tenn.) 418, 6, 68 Small V. Commonwealth, 8 Pa. St. 101, 502 Small V. Currie, 2 Drewry, 102, 5, 365 ex XXVI TABLE OF OASES. Section Small V. Uurrie, 5 DeGex, Macn. & Gor. 141, 345 Small, Globe Bank v. 25 Me. 366, 168 Smart, Low v. 5 New Hamp. 353, 233 SmaiT V. McMaster, 35 Mo 349, 323 Smarr v. Schmtter, 38 Mo. 478, 317 Smee, Hargreave v. 6 Bing. 244, • 78, 132 Smee, Hargreave v. 3 Moore & Payne, 573, 132 Smeidel v. Lewellyn, SPhila. (Pa.) 70, ' 86 Smith V. Allen, Saxton (N. J.) 43, 118 Smith, Andrews v. 2 Cromp. Mees. & Rob. 627, 49 Smith, Andrews v. Tyrwh. & Gr. 173, 49 Smith t). Anthony, 5 Mo. 504, 162 Smith V. Arnold, 5 Mason (C. C.) 414, 76 Smith V. Bainbridge, 6 Blackf. (Ind.) 12, 169 Smith, Bank of Brighton v. 12 Al- len, 248, 478, 521 Smith, Bank of Brighton v. 5 Al- len, 413, 13 Smith V. Bank of Scotland, 1 Dow, 272, . 367 Smith, Bank of St. Albans v. 30 Vt. 148, 17, 89 Smith V. Barker, 6 Watts (Pa.J 508, 431 Smith, Barnett v. 17 111. 565, 99 Smith, Belcher v. 7 Cush. 482, 154 Smith V. Bing, 3 Ohio, 33, - 242 Smith, Bizzell v. 2 Dev. Eq. (Nor. Car.) 27, 209 Smith V. Bland, 7 B. Mon. (Ky.) 21, 499 Smith, Bleakley v. 11 Simons, 150, 75 Smith, Brien v. 9 Watts & Serg. (Pa.) 78, 275 Smith V. Buokalew v. 44 Ala. 638, 206 Smith V. Chicago & N. W. R. R. Co. 18 Wis. 17, 106 Smith V. Clopton, 48 Miss. 66, 18, 209, 317, 508 Smith V. Compton, 6 Cal. 24, 361 Smith V. Commonwealth, 59 Pa. St. 320, 488 Section Smith V. Commonwealth, 25 Gratt. (Va.) 780, 324 Smith V. Conrad, 15 La. An. 579, 233 Smith, Cowper v. 4 Mees. & Wels. 519, 126 Smith V. Crease's Exr. 2 Cranoh C. C. 481, 209 Smith V. Crooker, 5 Mass. 538, 336 Smith V. Dann, 6 Hill, 543, 103, 167 Smith, Davis v. 5 Ga. 274, 273 Smith V. Dickinson, 6 Humph. (Tenn.) 261, 85 Smith, District Township of Union V. 39 Iowa, 9, 477, 478 Smith V. Doak, 3 Tex. 215, 18, 349 Smith, Dunn w.' 12 Smedes & Mar. (Miss.) 602, 349 Smith V. Evans, 1 WUs. 313, 75 Smith V. Falconer, 11 Hun, (N. T.) 481, 404 Smith V. Finch, 2 Scam. (111.) 321, 9, 58, 153 Smith, First Natl. Bank v. 25 Iowa, 210, 513 Smith V. Governor, 2 Robinson (Va.) 229, ■ 519 Smith V. Gorton, 10 La. (Curry) 374, 149 Smith, Grant v. 46 New York, 93, 98 Smith, Grieve v. 23'Up. Can. Q. B. R. 23, 345 Smith, Hall v. 5 Howard (U. S.) 96, 180 Smith, Hartwell v. 15 Ohio St. 209, 230 Smith f. Han-ison, 33 Ala. 706, 260, Smith V. Hawkins, 6 Ct. 414, 299 Smith, Hunt v. 17 Wend. 179, 297 Smith V. Hyde, 19 Vt. 54, 63, 116 Smith V. Hyde, 36 Vt. 803, 310 Smith v. Ide, 3 Vt. 290, 68, 72 Smith V. James, 1 Miles (Pa.) 162, 190 Smith V. Jones, 7 Leigh (Va.) 165, 76 Smith, Joslyn v. 13 Vt. 353, 120, 296 Smith, King v. 2 Leigh (Va.) 157, 349 Smith V. Kinney, 6 Neb. 447, 189 Smith ». Kitchens, 51 Ga. 158, 432 Smith, Lamp i\ 56 Ga. 589, 436 Smith V. Lovell, 2 Montana, 332, 480 TABLE OF OASES. CXXXVU Section Smith V. Martin, 4 Des. Eq.. (So. Car.) 148, 117 Smith, McCIure v. 56 Ga. 439, 439 Smith, McCue i>. 9 Minn. 252, 88 Smith 0. MeLeod, 3 Ired. Eq. (Nor. Car.) 390, 261 Smith V. Moberly, 10 B. Mon. (Ky.) 266, 94, 354 Smith, Morgan v. 1 Hun (N. Y.) 244, 364 Smith v. Morrill, 54 Me. 48, 226 Smith ». Montgomery, S Texas, 199, 97 Smith, Nisbet v. 2 Brown's Ch. R. 579, 205, 326 Smith, O'Donnell v. E. D. Smith (N. Y.) 124, 53 Smith, Ovington t. 78 111. 250, 414 Smith w. Peoria County, 59 111. 412, 355, 469 Smith, Powell v. 8 Johns. 249, 183, 190 Smith V. Prince, 14 Ct. 472, 188 Smith V. Rice, 27 Mo. 505, 27, 107, 326 Smith V. Rines, 82 Me. 177, 197 Smith V. Roby, 6 Heisk. (Tenn.) 546, 418 Smith V. Rogers, 14 Ind. 224, 82 Smith V. Rudhall, 3 Foster & Fin. 143, 63 Smith V. Rumsey, 33 Mich. 188, 255, 269 Smith V. Sayward, 5 Gtreenl. 504, 46,50 Smith V. Sheldon, 35 Mich. 42, 1, 19, 23 Smith, Shields v. 8 Bush (Ky.) 601, 500 Smith V. Smith 5 Ired. Bq. (Nor. Car.) 34, 193 Smith V. Smith, 1 Devereux, Eq. (Nor. Car.) 173, 225 Smith V. Stapler, 23 Ga. 300, 451 Simth V. Starr, 4 Hun (N. Y.) 123, 36 Smith V. Steele, 25 Vt. 427, 302 Smith V. Stroiit, 63 Me. 205, 214 Smith r. Swain, 7 Richardson Eq. (So. Car.) 112, ' 273 Smith, TeiTell v. 8 Ct. 426, 377 Section Smith V. Townsend, 25 New York, 479, 22 Smith, Treat i>. 64 Me. 112, 299 Smith, Troy v. 83 Ala. 469, 282 Smith «. United States, 2 Wallace (U. S.) 219, 334 Smith, White 1>. 38 Pa. St. 186, 340 Smith, White «. 2 Jones Law (Nor. Car.) 4, 466 Smith, Williams v. 48 Me. 135, 805 Smith V. Winter, 4 Mees. & Wels. 454, 800 Smith, Yeary v. 43 Texas, 56, 296 Smith's Exrs. v. Anderson, 18 Md. 520, 227 Smith's Bxr. Ashby's Admr. ■;;. 9 Leigh (Va.) 164, 381 Smith's Exrs. Cope v. 8 Serg. & Rawle (Pa.) 110, 206, 296 Smyley v. Head, 2 Rich. Law (So. Car.) 590, 128, 215 Smythe, Drake v. 44 Iowa, 410, 325 Snevily v. Ekel, 1 Watts & Serg. (Pa.) 203, 154 Snevily o. Johnston, 1 Watts & Serg. 307, 7 Sneed's Exrs. v. White, 3 J. J. Mar. (Ky.) 525, 48 Snell V. AUen, 1 Swan. (Tenn.) 208, 521 Snell V. State, 43 Ind. 859, 483 SneU V. Warner, 63 lU. 176, 180 Snider v. Greathouse, 16 Ark. 72,- 66, 527 Snodgrass, Blair v. 1 Sneed (Tenn.) 1, 66 Snow, Draper v. 20 New York, 331, 73 Snow, First Congregational Socie- ty V. 1 Cush. 510. 282 Snyder v. Klose, 19 Pa. St. 235, 352 Snyder, Vredenburgh v. 6 Iowa Suydam v. Westfall, 2 Denio, 205, 156 Suydam v. Westfall, 4 Hill, 211, 156 Suydam v. Vance, 2 McLean, 99, 321, 325 (Clarke) 39, 892 Sohier v. Loring, 6 Cush. 537, 829 cxxxvm TABLE OF OASES. Section Sollee V. Meugy, 1 Bailey Law (So. Car.) 620, 97, 120, 136, 157 Solomon, Loohrane v. 38 Ga. 286, 385 Solomon, Phillips V. 42 Ga. 192, 126 Sommers, Commonwealth v. 8 Bush (Ky.) 555, 483 Somerville v. Maibury, 7 GiU & Johns. (Md.) 275, 381 Sommerville, MoBrown v. 2 Stew. (Ala.) 515, 415 Sooy ads. State, 39 New Jer. Law (10 Vroom) 135, 360, 365, 867 Sooy ads. State, 38 New Jer. Law 324, 5, 12, 860 Sooy, State v. 39 New Jer. Law (10 Troom) 539, 294, 466 Soper, Dennison v. 33 Iowa, 183, 176 Somberger, Stever v. 24 Wend. 275, 434 Sotheren ». Reed, 4 Harris & Johns. (Md.) 307, 270 Soulet>. Albee,'31 Vt. 142, 58 Soule, Hall v. 11 Mich. 494, 67 Soule, Norton v. 2 Greenl. (Me.) 341, ^ 275 South Carolina Manf. Co. v. Bank, 6 Rich. Eq. (So. Car.) 227, 217 South Carolina Society v. Johnson, 1 MoCord Law (So.'Car.) 41, 139 Southgate, Rice v. 16 Gray, 142, 177 Southworth, Lothrop v. 5 Mich. 436, 534 Soullard, Hulett v. 26 Vt. 295, 178, 187 Southwick, Cook v. 9 Texas, 615, 147, 151, 153 Sizer, Pringle v. 2 Richardson, N. S. (So. Car.) 59, 213 Sparks, Dunn v. 7 Ind. 490, 225 Sparks, Dunn o. 1 Ind. 397, 240 Sparks V. Hall, 4 J. J. Marsh. (Ky.) 35, 296 Sparks, Todd v. 10 La. An. 668, 501 Spaulding v. Austin, 2 Vt. 555, 185 Spalding v. Andrews, 48 Pa. St. 411, 53 Spalding v. Bank, 9 Pa. St. 28, 214 Spear v. Ward, 20 Cal. 659, 22 Spears, Douglass v. 2 Nott & MoC. (So. Car.) 207, 75 Section Speed, Miller v. 9 Heisk. (Tenn.) 196, 192 Speokenagle, Sharpe v. 3 Serg. & Rawle (Pa.) 463, 126 Speidel, Leonard v. 104 Mass. 356, 407 Spencer, Bradwell v. 16 Ga. 578, 533 Spencer v. Carter, 4 Jones' Law (Nor. Car.) 278, 175 Spencer v. Handley, 5 Scott (N. B.) 546, 354 Spencer, Hurd v. 40 Vt. 581, 370 Spencer, Okie v. 1 Miles (Pa.) 299, 317 Spencer v. Thompson, 6 Irish Com. Law Rep. 537, 378 Spencer, United States v. 2 Mc- Lean, 405, 449 Spicer, McMurray v. Law B. 5 Eq. 527, 67 Spicer v. Norton, 13 Barb. (N. Y.) 542, 71 Spies V. Gilmore, 1 New York, 321, 150 Spiers v. Houston, 4 Bligh. (N. R.)- 515, 98 Spinhorst, Kupfers. 1 Kansas, 75, 517 Spooner, Boardman v. 13 Allen, 353, 66, 76 Spooner v. Dunn, 7 Ind. 81, 50 Spottswood V. Dandridge, 4 Munf. (Va.)289,' 495 Sponslers' Exrs. Wetzel v. 18 Pa. St. 460, 206, 207 Sproson, Westhead v. 6 Hurl. & Nor. 728, 9 Spring Hill Mining Co. v. Sharp, 3 Pugsley (New Bruus.) 603, 476 Springfield Manf. Co. v. West, 1 Cush. 388, 434 Springfield, Nail v. 9 Bush (Ky.) 673, 814 Spratt, Clopton v. 52 Miss. 251, 388 Spratlin v. Hudspeth, Dudley . (Ga.) 155, 91 Sprague, Dugan v. 3 Ind. 600, 819 Sprigg». Bank of Mount Pleasant, 10 Peters (U. S.) 257, 28 Sprigg, Cross v. 2 Hall & Twells, 223, 822 TABLE OF OASES. CXXXIX Section Sprigg, Cross v. 2 Macn. & Gor. 113, 322 Springer v. Hutchinson, 19 Me. 359, 35 Springer v. Toothaker, 43 Me. 381, 209, 378 Springer, Springer's Admr. v. 43 Pa. St. 518, 263 Spurlock, Hopkins v. 2 Heisk. (Tenn.) 152, 206 Squire, Stepliena v. 5 Modern, 205, 53,54 Staats V. Howlett, 4 Denio, 559, 70 Stadtw. Lill, 9East, 348, 70 Stage V. Olds, 12 Ohio, 158, 115 Stagg V. Linnenfelser, 59 Mo. 336, 147 Stafford Bank v. Crosby, 8 Greenl. (Me.) 191, 299 Stafford v. Low, 20 III. 152-, 434 Stafford v. Low, 16 Johns. 67, 162 Staunton, Wade v. 5 Howard (Miss.) 631, 819 Staokhouse, Pauli). 38 Pa. St. 302, 7 St. Albans Bank o. Dillon, 30 Vt. 122, 128 Stainbp.nk, Davies v. 6 DeGex, Maon. & Gor. 679, 210, 312, 322 Stapleton's Admr. Harley v. 24 Mo. 248, 185 Staples, Consolidated Presbjterian Society v. 23 Conn. 544, 49 Staples, -Lord v. 23 New Hamp. 448, 181 Stapler, Smith v. 23 Ga. 300, 451 Stalliugs V. Johnson, 27 Ga. 564, 307 Stallworth, Presslar v. 37 Ala. 402 259, 272, 529 Stallworth v. Preslar, 34 Ala. 505, 251, 257, 259 Standley v. Miles, 36 Miss. 434, 7 Standclift, Richmond v. 14 Vt. 258, 363 Stansfield «?. Johnson, 1 Esp. 101, 76 Stan bury. United States f. 1 Peters, 373, 377 Stanford v. Allen, 1 Cush. 473, 83 Stanton ^\ Commonwealth, 2 Dana (Ky.) 397, 486 Stanton, Ide v. 15 Vt. 685, 66 Sectiok Stanton, Pollard v. 5 Ala. 451, 537 Stantons, Eddy v. 21 Wend. 255, 84 Stanly v. Hendricks, 13 Ired. (Nor. Car.) 86, 49 Stanly, Lemayne v. 1 Freeman, 538, 75 Stanley, Belfast Banking Co. v. Irish Rep. 1 Com. Law, 693, 296 Stanley, Inhabitants of Farming- ton V. 60 Me. 472, 474, 476 Stanley, Lemayne v. 3 Levinz, 1, 75 Stanley. Lobb v. 5 Queen's B. 674, 75 Stanley, Mecorney v. 8 Cush. (Mass.) 85, ' 8' Stanley, Porter «. 47 Me. 515, 464 Stark V. Puller, 42 Pa. St. 320, 216 Stark, Goodwin v. 15 New Hamp. 218, 440 Starry v. Johnson, 32 Ind. 438, 383 Starrett v. Barber, 20 Me. 457, 94 Starling v. Buttles, 2 Ohio, 303, 506 Starr, Bates v. 6 Ala. 697, 63 Starr, Smith v. 4 Hun (N. T.) 123, 36 Starnes, Greene v. 1 Heisk. (Tenn.) 582, 192 Stamps, Bush v. 26 Miss. 463, 284 Stamps, Sheid v. 2 Sneed (Tenn.) 172, 67 Stamford, &c. Banking Co. v. Ball, 4 DeGex, Fish and J. 310, 22 Stamford Bank v. Benedict, 15 Ct. 437, 265, 286 Statler, Glenn v. 42 Iowa, 107, 107 Statts, Davis v. 43 Ind. 103, 128 State V. Allen, 2 Humph. (Tenn.) 258, 431 State V. Alden, 12 Ohio, 59, 295 State, Allison v. 8 Heisk. (Tenn.) 312, 145 State, Armington v. 45 Ind. 10, 452 State, Armstrong v. 7 Blackf. ^ (Ind.) 81, 462 State V. Atherton, 40 Mo. 209, 367, 369 State, Bagot v. 33 Ind. 262, 522 State V. Baker, 64 Mo. 167, 858 State, Bales v. 15 Ind. 321, 466 State V. Bartlett, 30 Miss. 624, 444 State V. Bates, 36 Vt. 387. 445, 476 cxl TABLE OF OASES. Section State Bank, Bates v. 7 Ark. (2 Bng.) 894, 504 State V. Beard, 11 Robinson (La.) 243, 323 State, Belding v. 25 Ark. 315, 431 State V. Benton, 48 New Hamp. 551, 440 State V. Berry, 34 Ga. 546, 429 State V. Bird, 2 Richardson Law (So. Car.) 99, 459 State V. Birchim, 9 Nevada, 95, 439 State V. Blake,. 2 Ohio St. 147, 124 State V. Blakemore, 7 Heiskell, (Tenn.) 688, 98 State V. Blair, 32 Ind. 813, 833 State, Boggs v. 46 Texas, 10, 477, 510 State V. Bowman, 10 Ohio, 445, 127 State V. Bradshaw, 10 Iredell Law (Nor. Car.) 229, 473 State V. Brown, 16 Iowa, 814, 433, 485 State V. Brown, 11 Ired. Law (Nor. Car.J 141, 484 State V. Bugg, 6 Robinson (La.) 63, 121 State V. Burnham, 44 Me. 278, 431 State, Butler v. 20 Ind. 169, 458 State, Carey v. 34 Ind. 105, 453 State K.'Carleton, 1 Gill (Md.) 249, 824 State c. Coste. 36 Mo. 437, 582 State ». Cocke, 87 Texas, 155, 489 State V. Conover, 4 Dutcher (N. J.) 224, 484 State Bank, Comegys v. 6 Ind. 357, 235 State V. Cone, 82 Ga. 663, , 428 State, Coman u. 4 Blackf. (Ind.) 241, 324 State V. Cunningham, 10 La. An. 893, 427, 435 State, Darter «. 5 Blackf. (Ind.) 61, 619 State, Dennard v. 2 Kelly (Ga.) 137, 432 State, Doepfner v. 36 Ind. Ill, 480 State, Douglass v. 44 Ind. 67, 805 State V. Doyal, 12 La. An. 658, ,426 State V. Druly, 3 Ind. 431, 484 State V. Drury, 86 Mo. 281, 461 State, Duncan v. 7 La. An. 377, 474 State V. Dunn, 11 La. An. 549, 836, 348, 367 Seotios State Bank v. Edwards, 28 Ala. 512, 378 State Bank v. Evans, 3 J. S. Green (N. J. Law) 155, .357 State V. Parmer, 21 Mo. 160, 484 State Bank, Ferguson v. 8 Ark. (3Eng.)416, 296 State V. Findley, 10 Ohio, 51, 443, 445 State Bank, Findley v. 6 Ala. 244, 854 State, Fleece v. 25 Ind. 384, 439 State V. Fleming, 46 Ind. 206, 492 State V. Fredericks, -8 Iowa, 558, 13 State, Fridge v. 3 Gill & Johns, (Md.) 103, 29 State V. Frith, 14 La. (Curry) 191, 431,435 State V. Garton, 82 Ind. 1, ' 355 State V. Givan, 45 Ind. 267, 453 State, Goodin v. 10 Ohio, 6, 457 State, Gott v. 44 Md. 319, 327 State V. Hammond, 6 Gill & Johns. (Md.) 157, ■ 325 State V. Hampton, 14 La. An. 690, 82, 452 State V. Hampton, 14 La. An. 736, 442 State V. Harrison, Harper Law (So. Car.) 88, 456 State V. Hathom, 86 Miss. 491, 473 State V. Hayes, 7 La. An. 118, 475 State V. gicks, 2 Blackf. (Ind.) 336, 448 State V. Hood, 7 Blackf. (Ind.) 127, 462 State V. Humphreys, 7 Ohio, 224, 491 State, Hunt v. 58 Ind. 821, 355 State, Iglehart v. 2 GUI. & Johns. (Md.) 235, 532 State V. Jennings, 10 Ohio St. 73, 525 State V. Jones, 3 La. An. 9, 434 State, Kelly v. 25 Ohio St. 567, 445, 467 State Bank, King v. 9 Ark. (4 Eng.) 185, 296 State, Lane v. 27 Ind. 108, 461, 520, 522 State, Laurenson v. 7 'Harr. & Johns. (Md.) 389, 445 State V. Le Cerf, 1 Bailey Law (So. Car.) 410, 426 State, Lee v. 2 Kelly (Ga.) 137, 432 State V. Lewis, 73 Nor. Car. 188, 29, 478 TABLE OF OASES. cxli Section State, Lewis r. 41 Miss. 686, 429 State V. Long, 8 Iredell Law (Nor. Car.) 415, 483 State V. Littlefleld, 4 Blaokf. (Ind.) 129, 480 State V. Mahon, 3 Harrington (Del.) 568, ' 427 State V. Mann, 21 Wis. 684, 484 State V. Martel, 3 Robinson (La.) 22, 432 State V. Matson, Admr. 44 Mo. 305, 383 State V. McCormack, 50 Mo. 568, 464 State, McGooney v. 20 Ohio, 98, 112 State, Merryman v. 5 Harris & Johns. (Md.) 423, 270 State Bank at Brunswick v. Mat- tier, 2 Bosw. (N. T.) 392, 49 State V. Miller, 5 Blaokf. (Ind.) 881, 272 State, Moore v. 49 Ind. 558, 490 State, Moore v. 28 Ark. 480, 106 State, Moss v. 10 Mo. 388, 141 State V. Muir, 20 Mo. 303, 458 State 1). Norment, 12 La. (Curry) 511, 432 State, Nutzenholster v. 37 Ind. 457, 448 State V. Odom, 1 Spears Law (So. Car.) 245, 447 State, Owen v. 25 Ind. 371, 497 State, Park v. 4 Ga. 329, 434, 438 State, Parks v. 7 Mo. 194, 392 State, Parker v. 8 Blaokf. (Ind.) 292, 521 State, Peacock v. 44 Texas, 11, 431 State V. Peek, 53 Me. 284, 3.55 State Bank v. Peeks, 28 Vt. 200, 80 State, Pepper v. 22 Ind. 399, 355, 358 State V. Pepper, 31 Ind. 76, 336, 355, 358 State V. Pike, 74 Nor. Car. 531, 526 State, Potter v. 23 Ind. 550, 15, 444 State V. Potter, 68 Mo. 212, 855 State t). Powers, 52 Miss. 198, 461 State V. Plazencia, 6 Robinson (La.) 417, 433 State, Quynn v. 1 Harr. & Johns. (Md.) 36, 447 State V. Reaney, 18 Md. 230, 4.30 Seotiok State V. Reynolds, 3 Mo. 70, 486 State V. Rhoades, 6 Nevada, 352, 443, 445, 522 State V. Rhoades, 7 Nevada, 434, 473 State V. Rhodius, 37 Texas, 165, 439 State V. Ruoker, 59 Mo. 17, 498 State, Rush v. 20 Ind. 432, 82, 281 State Bank v. Robinson, 13 Ark.' (8 Eng.) 214, 125 State, Scott v. 46 Ind. 203, 453 State V. Soott, 20 Iowa, 63, 428, 430 State, Sherman v. 4 Kan. 570, 4, 436 State Bank, Sherry v. 6 Ind. 397, 393 State V. Sloane, 20 Ohio, 827, 453 State, Snell v. 43 Ind. 859, 483 State, Sooy ads. 33 New Jer. Law, 324, 5, 12, 860 State, Sooy ads. 89 New Jer. Law, (10 Vroom) 135, 360, 365, 367 State V. Sooy, 89 New Jer. Law, (10 Vroom) 539, 294, 466 State p. Stewart, 36 Miss. 652, 144, 583 State, Steinbak v. 38 Ind. 483, 460 State Bank, . Stone v. 8 Ark. (3 Eng.) 141, 315 State, Sugarman v. 28 Ark. 142, 439 State V. Thompson, 49 Mo. 188, 442 State V. Tierman, 39 Iowa, 474, 482 State V. Toomer, 7 Richardson Law (So. Car.) 216, 445 State, Tucker t). 11 Md. 822, 32 State V. Vananda, 7 Blackf. (Ind.) 214, 487 State V. Vandusen, 5 Up. Can. Q. B. R. 353, 98 State, Voris v. 47 Ind. 345, 493 State, Warren v. 11 Mo. 583, 458 State, Warwick v. 5 Ind. 850, 493 State Bank v. Watkins, 6 Ark. (1 Eng.) 123, 209 State V. Waymari, 2 GiU. & Johns. (Md.) 254, 93, 141 State 1). Wells, 8 Nevada, 105, 445 State, Wheeler v. 9 Heisk. (Tenn.) 393,. 478, 518 State, White v. 1 Blackf. (Ind.) 557, 530 State V. White, 10 Richardson Law (So. Car.) 442, 451 cxlii TABLE OF OASJES. Section State, Widener v. 45 Ind. 244, 481 State V. Wright, 37 Iowa, 522, 436 State V. Toung, 23 Minn. 551, 14, 463, 478 State, Young v. 7 Gill & Johns. (Md.) 253, 442 Stead V. Liddard. 8 Moore, 2, 70 Steadman v. Guthrie, 4 Met. (Ky.) 147, 158 Steamboat Stacy, Griff v. 12 La. An. 8, 390 Steamer Belle Air, Holmes v. 5 La. An. 523, 404 Stearns v. Hall, 9 Cush. 31, 67 Stearns, Whitney v. 16 Me. 394, 70 Steckel, Koeuing v. 58 N. T. 475, 288 Steele, Agee v. 8 Ala. 948, 315 Steele v. Boyd, 6 Leigh (Va.) 547, 312 Steele v. Faber, 37 Mo. 71, 235 Steele i\ Hoe, 14 Adol. & Ell. N. S. 481, ^ 72 Steele v. Mealing, 24 Ala. 285, 233, 234, 236 388 Steele, Reeves v. 2 Head (Tenn.) 647, 500 Steele v. Reese, 6 Yerg. (Tenn.) 263, 462 Steele, Simons k. 36 New Hamp. 73, 66, 73, 104, 171 Steele, Smith v. 25 Vt. 427, 302 Steele v. Towne, 28 Tt. 771, 62 Stedman v. Freeman, 15 Ind. 86, 261 Stedman, Arnold v. 45 Pa. St. 186, 50 Steinbak v. State, 38 Ind. 483, 460 Steiner, Huber v. 2 Scott, 304, 38 Steiple V. Borough of Elizabeth, 3 Butcher (N. J.) 407, 29 Stem, MiUer v. 12 Pa. St. 383, 349 Stemmons, Henley u. 4 B. Mon. (Ky.) 131, 265, 276 Stephens, Palmer v. 1 Denio, 471, 75 Stephens v. Pell, 4 Tyrwh. 6, 49 Stephens v. PeU, 2 Cromp. & Mees. 710, . 49 Stephens v. Squire, 5 Modem, 205, 53,54 Stephens ». Win, 2 Nott. & McC. 372, 68 Section Stephenson v. Tavemers, 9 Graft. (Va.) 898, 192 Stephenson, Ware v. 10 Leigh. (Va.) 155, 61 Steptoe's Admr. r. Harvey's Bxr. 7 Leigh (Va.) 501, 327 Stern v. Drinker, 2 E. D. Smith (N. Y.) 401, 60 Stem, Millers. 9 Pa. St. 286, 298 Sterns v. Marks, 35 Barb. (N. T.) 565, 98 Sterling, Dundas v. 4 Pa. St. 73, 361 Sterling, Parker v. 10 Ohio, 357, 429 Sterling v. Stewart, 74 Pa. St. 445, 288 Stetson B. City Bank of N. 0. 12 Ohio St. 577, 82 Stetson V. City Bank, 2 Ohio St. 167, 521 Stetson, Thomas v. 59 Me. 229, 296 Steuart, Butcher v. 11 Mees. & Wels. 857, ' 72 Stevens V. Allmen, 19 Ohio St. 485, 461 Stevens, Bank of Wooster v. 6 Ohio St. 262, 202 Stevens v. Campbell, 6 Iowa (Clarke) 538, 504 Stevens, Franklin Bank v. 39 Me. 582, 365 Stevens, Gard v. 12 Mich. 292, 137 Stevens, Sanderson v. 116 Mass. 133, , 440 Stevenson v. Bay City, 26 Mich. 44, 355, 452 Stevenson v. Hoy, 43 Pa. St. 191, 10 Stevenson v. McLean, 11 Up. Can. C. P. R. 208, 97 Stever o. Sornberger, 24 Wend. 275, 434 Stewart, Atkinson v. 2 B. Mon. (Ky.) 348, 255 Stewart, Bank of United States v. 4 Dana (Ky.) 27, 283 Stewart v. Barrow, 55 Ga. 664, 200 Stewart v. Behm, 2 Watts (Pa.) 856, 127 Stewart, Buckner's Admr. v. 34 Ala. 529, 254 Stewart, Butcher v. 11 Mees. & Wels. 857. 48 TABLE OF CASES. cxliii Section Stewart v. Dayis' Exr. 18 Ind. 74, 352 Stewart, Farmer v. 2 New Hamp. 97, 214 Stewart, Forest v. 14 Ohio St. 246, 85, 170 Stewart v. Hintle, 1 Bond, 506, 9, 48 Stewart, Krutz v. 54 Ind. 178, 68 Stewart v. Malone, 5 Phila. 440, 53 Stewart, Miller v. 4 Washington, (C. C.) 26, 342 Stewart, MiUer v. 9 Wheaton 680, 79, 342 < Stewart v. Parker, 55 Ga. 656, 17, 299 Stewart, Roberts v. 31 Miss. 664, 296, 298, 306, 309 Stewart, State v. 36 Miss. 652, 144, 533 Stewart, Sterling v. 74 Pa. St. 445, 288 Stewart, Thomas v. 2 Pen. & Watts (Pa.) 475, 434 Stirling, Crawford v. 4 Esp. 207, 10 Stirling p. Forrester, 3 Bligh, 575, 383 Stickles, Crane v. 15 Vt. 252, 370 Stickler o. Burkholder, 47 Pa. St. 476 207 Stinson v. Brennan, Cheves Law (So. Car.) 15, • 184 Stinson, Gass v. 2 Sumner, 453, 3^2 Stillinger, Culbertson v. Taney's ' Decisions (Campbell) 75, 195 Stickney v. Mohler, 19 Md. 490, 26 Stillwell V. How, 46 Mo. 589, 225 Stillwell, Wilson v. 9 Ohio St. 467. 82 St. Louis Building and Savings Assn. V. Clark, 36 Mo. 601, 281 Stoppani v. Richard, 1 Hilton (N. Y.)509, 6 St«3vall V. Banks, 10 Wallace, 583, 496 Stobridge, Ford v. Nelson, 24, 176 Stoops V. Wittier, 1 Mo. Appl. Rep. 420, 524 Stokes V. Hodges, 11 Rich. Eq. (So. Car.) 135, 25 Stoker, Dick v. 1 Devereux Law (Nor. Car.) 91, 426 Stotho£F V. Dunham's Exrs. 4 Har- ris (N.J.) 181 -248,252 Stodt V. Hine, 45 Pa. St. 30, 50 Stoddard v. Kimball, 6 Cush. 469, 354 Stow, Best V. 2 Sandf. Ch. 298, 352 Section Stow V. Scott, 6 Car. & Payne, 241, 64 Stowell V. Goodenow, 31 Me. 538, 312 Storms V. Thorn, 3 Barb. (N. Y.) 314, 27 Story, Rains v. 3 Car. & Payne, 130, 64 Storrs, Booth v. 75 111. 438, 354 Storrs, Wright v. 6 Bosw. (N. T.) 600, 299 Storer, Richards v. 114 Mass. 101, 407 Storer, Oxley v. 54 111. 159, 320 Sfoudt V. Hine, 45 Pa. St. 30, 49 Stout V. Ashton, 5 T. B. Mon. (Ky.) 251, 208 Stout V. Dilts, 1 Southard (N. J.) 218, 277 Stout, Happe v. 2 Cal. 460, 70 Stout, Mendelson v. 5 Jones & Spen. (N. Y.) 408, 348 Stout, Ward v. 32 111. 399, 17, 20 Stonum, Governor v. 11 Ala. 679, 120 Stoney, Beaubieij!). Speers Eq. (So. Car.) 508, 374 Stockton V. Coleman, 39 Ind. 106, 202 Stockton, KeUogg v. 29 Pa. St. 460, 111, 157, 158 Stockton, Stockton v. 40 Ind. 225, 383 Stockton, Wright's Admr. v. 5 Leigh (Va.) 153, 512 Stocker, Loew *. 68 Pa. St. 226, 127 Stocking ». Sage, 1 Conn. 519, 46 Stockbridge ». Schoonmaker, 45 Barb. (N. Y.) 100, 111 Stone V. Compton, 6 Scott, 846, 364 Stone V. Compton, 5 Bing. (N. C.) 142, 364 Stone V. Dennison, 13 Pick. 1, 38 Stone, Gammon v. 1 Vesey Sr. 339, 263 Stone V. Rockefeller, 29 Ohio St. 625, ' 83 Stone «. Seymour, 15 Wend. 19, 294 Stone, Sherwood v. 14 New York, 267, 57 Stone V. State Bank, 8 Ark. (3 Eng.) 141, 315 Stone V. Symmes, 18 Pick. 467, 48 Stone V. White, 8 Gray 589, 332 St. Paul, Brodie v. 1 Vesey Jr. cxliv TABLE OF OASES. Section Strafford Bank, Mathewson v. 45 New Hamp. 104, 306 Straton v. Rastall, 2 Bum. & East. 366, 389 Strange v. Fooks, 4 Giffard, 408, 386 Strader v. Houghton, 9 Port. (Ala.) 384, 206 Strait, Brown v. 19 111. 88, 52 Stratton, Finn v. 5 J. J. Marsh. (Ky.)364, 882 Straw, Wainwright v. 15 Vt. 215, 62 Strawbridge v. The Baltimore & Ohio R. R. Co., 14 Ind. 360, 843 Street v. Laurens, 5 Richardson Bq. (So. Car.) 227, 464 Strever, Agawam Baiik v. 16 Barb. (N. Y.) 82, 148 Strickland, Maser v. 17 Serg. & Rawle(Pa.)854, 530 Stringfellow o. Williams, 6 Dana (Ky.) 236, 880 Strohficker v. Cohen, 1- Spears (So. Car.) 349, 53 Stroop V. McKenzie, 38 Tex. 132, 17 Strout, Smith v. 63 Me. 205, 214 Strong, Bangs v. 7 Hill (N. T.) 250, 27, 818 Strong. Bangs v. 10 Paige Ch. R. 11, 299 Strong, Bangs v. 4 New York, 315, 27 Stiong i>. Foster, 17 Com. Bench (8 J. Scott) 201, 292, 296 Strong V. Giltinan, 7 Philadelphia ' (Pa.) 176, 525 Strong, Hedges v. 3 Oregon, 18, 48 Strong V. Lyon, 63 New York, 172, 845 Strong V. Riker, 16 Vt. 554, 151, 153 Strong, Sage v. 40 Wis. 575, 346 Strong, Trotter v. 63 111. 272, 27, 122 Strong V. Wooster, 6 Vt. 536, 870 Struthers v. Clark, 30 Pa. St. 210, 110 Struuk V. Ocheltree, 11 Iowa, 158, 484 Stukely, Terry v. 3 Yerger (Tenn.) 506, 396 StuU V. Davison, 12 Bush (Ky.) 167, 121 Sturgeon, Eddy v. 15 Mo. 198, 293 Sectiok Stub, Commonwealth v. 11 Pa. St. 150, 494 Stubbs, Boultbee v. 18 Vesey, 20, 329 Studebaker w. Cody, 54 Ind. 586, 33, 164 Studebaker, Kirby v. 15 Ind. 45, 166, 847 Sturges, Fullerton v. 4 Ohio St. 529, 356 Sturges, United States v. 1 Paine, 525, 377 Sublett v. McKinney, 19 Texas, 438, 199 Succession of Diggs, Gordon v. 9 La. An. 422, 405 Succession of Montgomery, 2 La. An. 469, 193 Succession of Pratt, 16 La. kn. 357, 388 Sugarman v. State, 28 Ark. 142. 439 Sugg, Briley v. 1 Dev. & Batt. Eq. (Nor. Car.) 366, 272 Sugarloaf, Butler i). 6 Pa. St. 266, 111 Sullivan v. Hugely, 48 Ga. 486, 296 Sullivan v. Murphy, 23 Minn. 6, 49 Summers, Loop v. 3 Rand. (Va.) •511, 370 Sumrall, Townsley v. 2 Peters, 170, 46, 53 Summerhill v. Tapp, 52 Ala. 227, 20, 382 Summerhill v. Trapp, 48 Ala. 363, 878 Supervisors of Albany v. Dorr, 7 Hill (N.Y.) 583, 477 Supervisors of Omro i>. Kaime, 89 Wis. 468, 477 Supervisors of Kewannee Co. v. Knipfer, 87 Wis. 496, 476 Supei-visors of Rensellaer v. Bates, 17 New York, 242, 446 Supervisors of St. Joseph ». Coifen- bury, 1 Manning (Mich.) 855, 12 Supervisors of Washington Co. v. Dunn, 27 Gratt. (Va.) 608, 444, 522 Supervisors of Richmond Co. o. Wandel, 6 Lansing (N.Y.) 33, 455, 476 Sureties of Oswald, Treasurers v. 2 Bailey Law (So. Car.) 214, 488 TABLE OF OASES. cxlv Section Sntherlin, ADiaon v. 50 Mo. 274, 266 Sutherland, Purviance v. 2 Ohio St. 478, 186 Sutherland, Watson v. 1 Cooper, Ch. R. (Tenn.) 208, 4, 204 Sutton, Blore v. 3 Merivale, 237,. 76 Sutton V. Irwin, 12 Serg. & Rawle, 13, 10 Sutton, Wakeman v. 2 Adol. & Ell. 78, 77 Swallow, Walters v. 6 Wharton (Pa.] 446, 300, 305 Swain v. Barber, 29 Vt. 292, 240 Swain, Smith v. 7 Eichardson Eq. . (So. Car.) 112, 273 Swain v. Wall, 1 Reports in Chan- cery, 149, 252 Swan, Goldshede v. 1 Wels. Hurl. & Gor. 154, 63, 72 Swan, Messer v. 8 New Hamp. 481, 237 Swan V. Nesmith, 7 Pick. 220, 57 Swan V. Patterson, 7 Md. 164, 266, 268 Swan, Trammell v. 25 Texas, 473, 362 Swann, Day v. 13 Me. 165, 179 Sweeting, Manchester Iron Manf. Co. V. 10 Wend. 163, 206 Swearingen, Toland o. 39 Texas, 447, 417 Sweeney, Lomine v. 1 Montana, 584, 420 Sweetser v. French, 2 Cush. 309, 10 Sweet Admr. v. Jeffries, 48 Mo. 279, 277 Sweet V. Lee, 3 Man. & Gr. 452, 75 ' Sweet, Marston v. 66 New York, v 207, ^ 77 Sweetzer v. French, 2 Cush. 309, 354 Sweetzer, Hill v. 5 New Hamp. 168, 349 Sweetzer, Leonard v. 16 Ohio 1, 115 Switzler, Mathews ». 46 Mo. 301, 286 Swire V. Redman, Law Rep. 1 'Queen's Bench, Div. 536, 315 Swinburne, Craythorne t). 14 Vesey, 160, 226, 230 Swindle, Coata v. 55 Mo. 31, 17, 517 Swing, Boyd v. 38 Miss. 182, 445 Swift V. Beers, 3 Denio, 70, 121 Section Swift, Patchin v. 21 Vt. 292, 68 Swift V. Pierce, 13 Allen, 136, 64 Swope, Commonwealth v. 45 Pa. St. 535, 454 Swope V. Forney, 17 Ind. 885, 30, 350 SykesB. Dixon, 9 AdoL &E11. 693, 71 Sylvester v. Downer, 20 Vt. 355, 153 Sylvester v. Downer, 18 Vt. 32, 111, 169 Syme v. Montague, 4 Hen. & Munf. (Va.) 180, 405 Symmes,, Stone v. 18 Pick. 467, 48 Taber, Brown v. 5 Wend. 566, 95 Taintor v. Taylor, 86 Ct. 242, 431 Talbot V. Gay, 18 Pick. 534, 168 Talbot V. Wilkins, 31 Ark. 411, 260 Talbott, MoPherson v. 10 Gill. & Johns. (Md.) 499, 231 Talbott, Tucker v. 15 Ind, 114, 852 Talmage v. Burlingame, 9 Pa. St. 21, 311 Talraan, Colgrove v. 67 New York, 95, 23, 206 TaUman v. Franklin, 14 New York, 584, 66 Talman v. Rochester City Bank, 18 Barb. 123, 3 Tallman, Colgrove v. 2 Lansing (N. Y.) 97, 19, 23 TaUmadge, Bay v. 5 John's Ch. 305, 27 TaUmadge, Hart v. 2 Day (Conn.) 381, 59 Taliaferro, Pinkstou u. 9 Ala. 547, 249 Tanner, Calliham v. 3 Robinson (La.) 299, 296, 325 Tanner, Holden v. 6 La. An. 74, 15 Tanner, HolUng-sworth v. 44 Ga. 11, 374 Tanner ». Moore, 9 Queen's B. 1, 134 Tankersely v. Anderson, 4 Dev. Bq. (So. Car.) 44, 190 Tapley v. Martin, 116 Mass. 275, 367 Tappen v. People, 67 111. 339, 456 Tappen, Blmendorph v. 5 Johns. 176, 109 Tappen v. Van Wagenen, 3 Johns. 465, 436 cxlvi TABLE OF CASES. Section Tapp V. Lee, 3 Bos. & Pul. 867, 69 Ttipp, Summerhill v. 52 Ala. 227, 20, 382 Tapscott, Weaver v. 9 Leigh (Va.) 424, 186 Tarr v. Ravenscroffc, 12 Gratt. (Va.) 642, 251 Tate, Campbell v. Lansing (N. T.) 370, 17 Tate V. Wymond, 7 Blackf. (Ind.) 210, 327 Tatlook, Peel v. 1 Bos. & Pul. 419, 368 Tatton V. Wade, 18 Com. B. 370, 59 Tatum V. Bonner, 27 Miss. 760, 88 Tatum V. Tatum, 1 Ired. Eq. (Nor. •Car.) 113, 280 Taul V. Epperson, 38 Texas, 492, 268 Tavel, Lecat v. 3 McCord, 158, 68, 73' Tayerners, Stephenson v. 9 Gratt. (Va.) 398, 192 Tayleur v. WUdin, Law Bep. 3 Exch. 303, 90, 137 Taylor v. Beck, 13 JU. 376, 208 Taylor, Breckenridge -o. 5 Dana (Ky.) 110, ■ 221, 247, 252, 529 'Taylor v. Burgess, 5 Hurl. & Nor. 1, 296 "Taylor v. Davis, 38 Miss. 493, 508 Taylor v. Dening, 3 Nev. & Per. 228, 75 Taylor v. Drake, 4 Strobh. (So. Car.) 431, 60, 61 Taylor v. Executor of Heriot, 4 Des. Eq. (So. Car.) 227, 195 Taylor v. Gilman, 25 Vt. 411, 352 Taylor v. Hillyer, 3 Blackf. (Ind.) 433, 54 Taylor v. Hortop, 22 Up. Can. CP. R. 542, 389 Taylor v. Hunt's Exr. 34 Mo. 205, 496 Taylor v. Jeter, 23 Mo. 244, 371 Taylor 'v. Johnson, 17 Ga, 521, 361, 485, 531 Taylor, Kirby v. Hopkins' Ch. E. 809, 123 Taylor, Lawrence v. 5 Hill, 107, 76 Taylor, Leigh o. 7 Barn. & Cress. 491, 451 Taylor, Levy v. 24 Md. 282, 415 SEcnoH Taylor, Martin v. 8 Bush (Ky.) 384, 378 Taylor v McClung's Ex'rs, 2 Hous- ton (Del.) 24, 97, 157 Taylor v. Mills, Cowper, 525, 189 Taylor v. Miller, Phillips Eq. (Nor. Car.) 365, 192 Taylor, Morrison v. 21 Ala. 779, 238 Taylor v. Morrison, 26 Ala. 728', 235 Taylor, Mosely v. 4 Dama, (Ky.) 542, 48 Taylor, Pahlman v. 75 III. 629, 147, 333 Taylor, Place v. 22 Ohio St. 317, 480 Taylor v. Pratt, 3 Wis. 674, 68 • Taylor v. Ross, 3 Terg. (Tenn.) 330, 68, 170 Taylor, Rucks v. 49 Miss. 552, 190, 199 Taylor v. Savage, 12 Mass. 98, 46, 231 Taylor, Shepard v. 35 Texas, 774, 108 Taylor, Skidmore v. 29 Cal. 619, 235 Taylor, Taintor v. 36 Ct. 242, 431 Taylor v. Taylor, 8 B. Mon. (Ky.) 419, 278 Taylor, Thomson ». 11 Hun (N. T.) 274, 187 Taylor, Treasurer v. 2 Bailey Law (So. Car.) 524, 462 Taylor v. Van Dusen, 3 Gray, 498, 82 Taylor, Walker v. 6 Car. & Pa. 752, 51 Taylor v. Wetmore, 10 Ohio, 490, 97, 167 Taylor v. Wilkinson, 1 Neville & Perry^629, 435 Teaff V. Ross, 1 Ohio St. 469, 389 Teague v. Fowler, 56 Ind. 569, 49 Teague v. Russell, 2 ^tew. (Ala.) 420, 211 Tebbetts, Wilson v. 29 Ark. 579, 509, 513 Teed, Holland v. 7 Hare, 50, 98 Telegraph Co. Doane ». 11 La. An. 504, 108 Teller v. Berheim, 3 PhUa. (Pa.) 299, , 84 Temple, Keate v. 1 Bos. & Pul. 158, 64 TABLE OF OASES. cxlvii Section Temples, Treasurers v. 2 Spears Law (So. Car.) 48, 580 Tempier, Scholefield v. Johns. (Eng. Oh.) 155, 124 Tempier, Scholefield v. 4 De Gex & Jones, 429, 124 Tenth Natl. Bank v. Darragh, 1 Him(N. T.)lll, 518 Tennant v. Orr, 15 Irish Com. Law R. 397, 106 Tennell v. Jefferson, 5 HarrJngton (Del.) 206, 213 Tenny ». Prince, 4 Pick. 885, 6, 153, 170 Ten Byok v. Brown, 3 Pinney (Wis.) 452, 35, 116, 170 Ten Eyok v. Holmes, 8 Sandf. Ch. R. 428, 283 Terry, Annett v. 35 New York, 256, 532 Terry, Couch v. 12 Ala. 225, 253 Terry v. Stukely, 8 Terger (Tenn.) 506, 396 Terry, Wing ®. 5 Hill (N. T.) 160, : 156 Terrell v. Townsend, 6 Texas, 149, , 391 Terrell v. Smith, 8 Ct. 426, 877 Tewkbury, Evoy v. 5 Gal. 285, 68 Thayer v. Danills, 110 Mass. 345, 199 Thayer ». Hurlburt, 5 Iowa (Clarke) 521, 424 Thayer, Jones v. 12 Gray, 443, 121 Thayer v. Rock, 13 Wend. 53, 38 Their Creditors, Morgan ef al. v. 1 La. (Miller) 527, 316 Therasson«. MoSpedon, 2 Hilton (N.Y.) 1, 51 Thigpen v. Price, Phillips' Eq. (Nor. Car.) 146, 192 Thomburgh v. Marden, 38 Iowa, 380, 211 Thomhill v. Christmas, 10 Robin- son (La.) 543, 4.34 Thomson, De Beil v. 3 Beav. 469, 66 Thomson v. Palmer, 3 Richardson Eq. (So. Car.) 189, 271 Thomson v. Searcy, 6 Port. (Ala.) • 893, 494 Section Thomson v. Taylor, 11 Hun (N.T.) 274, 187 Thorn, Gasquet v. 14 La. (Curry) '506, 172 Thorn, Storms v. 3 Barb. (N. T.) 814, 27 Thorne, Dunlap v. 1 Richardson, So. Car. 213, 50 Thome v. Travellers Ins. Co. 80 Pa. St. 15, 11 Thome, Trimble v. 16 Johns. 152, 206 Thomer v. Field, 1 Bulstr. 120, 9 Thornton v. Dabney, 23 Miss. 559, 298 Thornton, Hawkins v. 1 Yerger (Tenn.) 146, 396 Thornton v. Jenyes, 1 Man. & Gr. 166, 72 Thornton, Pratt v. 28 Me. 855, 218 Thornton v. Thornton, 68 Nor. Car. 211, 200, 382 Thomas, Allison v. 29 La. An. 732, 27, 296 Thomas, Armstead v. 9 Ala. 586, 308 Thomas, Bank of Upper Canada v. 11 Up. Can. C. P. R. 515, 19 Thomas v. Beckman, 1 B. Mon. (Ky.) 29, 184, 525 Thomas, Brinson v. 2 Jones Eq. (Nor. Car,) 414, , 277 Thomas v. Browder, 33 Texas, 783, 483 Thomas v. Burras, 23 Miss. 550, 32 Thomas, Chappee v. 5 Mich. 53, 514 Thomas v. Cook. 8 Bam. & Cress. 728, 46, 58 Thomas v. Cook, 3 Man. & Ry. 444, 46 Thomas v. Croft, 2 Richardson Law (So. Car.) 113, 8 Thomas v. Davis, 14 Pick. 358, ,161, 163 Thomas v. Dodge, 8 Mich. 51, 67, 83 Thomas v. Dow, 33 Me. 390, 296 Thomas, Fish «. 5 Gray, 45, 50 Thomas v. Hubbell, 15 New York, 405, '' 524 Thomas v. Jennings, 5 Smedes & Mar. (Miss.) 627, 147 Thomas ». Mann, 28 Pa. St. 520, 207 Thomas, Martin v. 24 How. (U. S.) 315, 335 cxlviii TABLE OF CASES. Section Thomas, Owen v. 3 Myl. & Keen, 353, 66 Thomas, Scott ». 1 Scam. (111.) 68, 60 Thomas v. Stetson, 69 Me. 229, 296 Thomas v. Stewart, 2 Pen. & Watts (Pa.) 476, 434 Thomas v. Tnrscott, 53 Barb. (N. Y.) 200, 352 Thomas v. Welles, 1 Root (Conn.) 57, 60 Thomas v. Williams, 10 Bam. & Cress. 664, 9, 38, 54 Thomas' Admx. Cox v. 9 Gratt. (Va.) 312, 25, 29 Thomas' Exr. v. Cleveland, 33 Mo. 126, 380 Thompson v. Adams, 1 Freeman's Ch. R. (Miss.) 225, 233. 383 Thompson, AUenw. lONewHamp. 32, 51 Thompson, Bank of Gettysburg v. 3 Grant's Cases (Pa.) 114, 386 Thompson v. Bond, 1 Camp. 4, 69 Thompson v. Bowne, 39 New Jer. Law (10 Vroom) 2, 200, 296 Thompson V. Buckhannon, 2 J. J. Marsh. (Ky.) 416, 5, 12 Thompson, Choteau v. 3 Ohio St. 424, 188 Thompson v. Dickerson, 22 Iowa, 360, 462 Thompson, French v. 6 Vt. 54, 51 Thompson, Glass v. 9 B. Mon. (Ky.)235, 380 Thompson v. Hall, 45 Barb. (N. T.) 214, 352 Thompson Hall, v. 9 Up. Can. C. P. R. 259, 123 Thompson v. Hall, 16 Ala. 204, 68 Thompson, Johnston v. 4 Watts. (Pa.) 446, 306 Thompson v. Lack, 3 Man. & Gr. & Scott, 540, 383 Thompson, Lichenthaler v. 13 Serg. & Rawle (Pa.) 157, 206 Thompson v. Linscott, 2 Greenl. (Me.) 186, 198 Thompson v. Lookwood, 15 Johns. 256, 434 Sfction Thompson, McCramer v. 21 Iowa, 244, 333 Thompson v. Perkins, 3 Mason, 232, 57 Thompson v. Roberts, 17 Irish, Com. Law Rep. 490, 146 Thompson v. Sanders, 4 Dev. & Bat. Law (Nor. Car.) 404, 230 Thompson, Seibert v. 8 Kansas, 65, 233, 282 Thompson, Spencer v. 6 Irish Com. Law Rep. 537, 378 Thompson, State v. 49 Mo. 188, 442 Thompson, Union Bank v. 8 Rob- inson (La.) 227, 478, 479 Thompson, Walrath v. 4 Hill. 200, 72 Thompson, Walrath v. 6 Hill, 540, 345 Thompson v. Watson, 10 Yerg. ' (Tenn.) 362, 206 Thompson v. Wilson's Exr. 13 La. (Curry,) 188, 180 Thompson, WUley v. 9 Met. (Mass.) 329, 318 Thompson v. Young, 2 Ohio, 335, 143 Thrasher v. Ely, 2 Smedes & Marsh (Miss.) 139, 170 Thrall v. Benedict,^ 13 Vt. 248, 94 Thm-ber v. Corbin, 51 Barb. (N. Y.) 215, 23 Thurston v. James, 6 Rhode Is. 103, 320 Thurston v. Prentiss, 1 Manning (Mich.) 193, 190 Thwaits v. Curl, 6 B. Mon. (Ky.) 472, 63 I'ickridge, Duncomb v. Aleyn, 94, 44 Tierman, State v. 39 Iowa, 474, 432 Tiffany v. Crawford, 1 McCarter (N. J.) 278, 352 Tilman, Whitworth v. 40 Miss. 76, 187 TiUman v. Wheeler, 17 Johns. 326, 150 Tilleston v. Nettleton, 6 Pick. 509, 61, 64 Tillotson V. Rose, 11 Met. (Mass.) 299, 176 Tillotson, United States v. 1 Paine, 305, 330 Tincher, Jones v. 15 Ind. 308, 82 Tinker v. McCauley, 3 Mich. 188, 35 TABLE OF OASES. cxHx Section Tinkler, Mozley v. 1 Gale, 11, 160 Tinkler, Mozley v. 5 Tyrwh. 416, 160 Tinkler, Mozley v. 1 Cromp. Mees. & Ros. 692, 160 Tinkum v. Duncan, 1 Grant's Gas. (Pa.) 228, 84 Tipton, Delaney i). 3 Hayw. (Tenn.) 14, 192 Tipton, Williams v. 5 Humph. (Tenn.) 66, 195, 266 mtus V. Durkee, 12 Up. Can. C. P. E. 867, 347 Titzer, Boyd v. 6 Gold. (Tenn.) 568, 505 l^'ader. Von Doren v. 1 Nevada, 880, 74, 149 Tobey, Todd v. 29 Me. 219, 49 Tobias v. Rogers, 13 New York, 59, 240 Todd, Bourne v. 63 Me. 427, 496 Todd, Chapman v. 60 Me. 282, 383 Todd, McCracken v. 1 Kansas, 148, 442, 444 Todd V. Perry, 20 Up. Can. Q. B. R. 649, 447 Todd, Raikes v. 1 Perry & Dav. 138, 71 Todd, Raikes v. 8 Adol. & Ell. 846, 71 Todd !). Sparks, 10 La. An. 668, 501 Todd V. Tobey, 29 Me. 219, 49 Todd, Wilcox v. 64 Mo. 388, 22 Tolleson, Poster v. 13 Rich. Law& Eq. (So. Car.) 31, 172 Tolhurst V. Brickinden, Cro. Jac. 250, 8 Toland v. Swearingen, 39 Texas, 447, 417 Toland, Tompkins v. 46 Texas, 684, 406 Tomlin, Lord Bolton v. 5. Adol. & Ell. 856, 38 Tombeckbee Bank, M'Grew v. 6 Port. (Ala.) 547, 209 Toms, Commonwealth v. 45 Pa. St. 408, 142 Tomlinson, Gausen v. 8 E. C. Green (N. J.) 405, 105 Tomlinaon v. Gill, Amb. 330, 43 Tomlinson v. Gell, 6 Ad. & Ell. 564, 9, 50 Tompkins, People v. 74 lU. 482, 469 Section Tompkins v. Toland, 46 Texas, 584, 406 Tooth, Dutchman v. 7 Scott, 710, 70 Tooth, Dutchman v. 5 Bing. (N. C.)577, -70 Toothaker, Springer v. 43 Me. 381, 209, 378 Toomer v. Dawson, Cheves (So. Car.) 68, 66 Toomer v. Dickerson, 37 Ga. 428, 389 Toomer, State v. 7 Richardson Law (So. Car.) 216, 445 Toplis 0. Grane, 5 Bing. (N. C.) 636, 46 Torney, Ledbetter o. 11 Iredell Law (Nor. Car.) 294, 178 Torrey, Bone v. 16 Ark. 83, 181, 527 Torrance, Gillespie v. 25 New York, 306, 203 Tourns v. Riddle, 2 Ala. 694, 383 Tousey v. Bishop, 22 Iowa, 178, 315 Toussaint v. Martinnant, 2 Durn. & East, 100, 176 Townsley v. SumraU, 2 Peters, 170, 46, 53 Townsee, Brayton v. 12 Iowa, 346, 487 Towne v. Ammidon, 20 Pick. 535, 117 Towne v. Grover, 9 Pick. 306, 60 Towne, Steele v. 28 Vt. 771, 62 Towns V. Farrar, 2 Hawks (Nor. Car.) 163, 85 Town of Metamora, Morley v. 78 111. 394, 467, 522 Towles, AtweU's Admr. v. 1 Munf. (Va.) 175, 115 Towle, McLean v. 3 Sandf. Ch. R. 117, 275 Towle V. National Guardian Assur- ance Society, 3 Giffard, 42, 351 Towle V. Towle, 46 New Hamp. 431, 534 Townsend, Dykes v. 24 New York, 57, 76 Townsend v. Everett, 4 Ala. 607, 466, 522 Townsend, Singleton ». 45 Mo. 379, 259 Townsend, Smith v. 25 New York, 479, 22 cl TABLE OF OASES. SEC?riON Townsend, Terrell ». 6 Texas, 149, 391 Townsend, Williams v. 1 Bosworth (N. Y.) 411, 320 Travellers Ins. Co. Thome v. 80 Pa. St. 15, 11 Traver, Eddy v. 6 Paige Ch. B. 521, 262, 270 Tratt, Damall v. 2 Car. & P. 82, 44 Trapp, Summerhill v. 48 Ala. 863, 378 Trask, Duval v. 12 Mass. 154, 67 Trask v. Mills, 7 Cush. 552, 111 Trail, Trimmier v. 2 Bailey Law (So. Car.) 480, 502 Tracy «. Goodwin, 5 Allen, 409, 530 Traoey, Overton v. 14 Sergf. & Bawle (Pa.) 311, 173 Trammell v. Swan, 25 Texas, 473, 362 Trabue, Curtcher v. 5 Dana (Ky.) 80, 202, 300 Treleasan, Kennaway v. 5 Mees. & Wels. 498, 70 Trecothic, Coles v. 9 Vesey, 234, 66, 75, 76 Tremper v. Hemphill, 8 Leigh (Va.) 623, 363 Trefethen v. Locke, 16 La. An. 19, 176 Trepagnier, Saulet v. 2 La. An. 427, 387 Trent Navigation Co. v. Harley, 10 East, 34, 391 Treat v. Smith, 54 Me. 112, 299 Treadway, People v. 17 Mich. 480, 452 Treasurer of Franklin Co. e. Mc- . Elvain, 5 Ohio, 200, 494 Treasurer of Pickaway v. Hall, 3 Ohio, 225, 494 Treasurers v. Bates, 2 Bailey Law (So. Car.) 862, 443, 518 Treasurers v. Billiard, 8 Richard- son Law (So. Car.) 412, 456, 485 Treasurers v. Johnson, 4 McCord Law (So. Car.) 458, 377 Treasurers v. Lang, Bailey Law (So. Car.) 430, 144 Treasurers v. Sureties of Oswald, 2 Bailey Law (So. Car.) 214, 488 SECnOK Treasurers v. Taylor, 2 Bailey Law (So. Car.) 524, 462 Treasurer -ik Temples, 2 Spears Law (So. Car.) 48, 530 Tricket v. Mandlee, Sid. 45, 8 Trice v. Tunentine, 5 Iredell Law (So. Car.) 236, 438 Trimmier v. Trail, 2 Bailey Law (So. Car.) 480, 502 Trimble v. Thorn, 16 Johns. 152, 206 Trumbo, Jordan v. 6 Gill & Johns. (Md.) 103, 296 True, Jenness v. 80 Me. 438, 116 True, Seibert v. 8 Kansas, 62, 282 Truesdell, Wakefield Bank v. 55 Barb. (N.Y.) 602, 305 Truesdell, United States v. 2 Bond, 78, 145 Trussell, BarreU v. 4 Taunt. 117, 6, 51, 68 Trustees of Free Schools v. Flint, 13 Met. (Mass.) 639, 54 Trustees of Athenssum, Foster v. 3 Ala. 302, 278 Trustees, etc. Kagy v. 68 111. 75, 467 Troy V. Smith, 33 Ala. 469, 282 Trowbridge v. Wetherbee, 11 Al- len, 361, 38 Trotter w. Crockett, 2 Porter (Ala.) 401, 384 Trotter v. Strong, 63 111. 272, 27, 122 Trousdale v. Philips, 2 Swan (Tenn.) 384, 521 Ti-out, Ratliff V. 6 J. J. Marsh, 606, 68 Troutman, Singer v. 49 Barb. (N. Y.) 182, 207 Trustees of Section Sixteen v. Mil- ler. 3 Ohio, 261, 216 Tuckerman v. French, 7 Greenl. (Me.) 116, 157 Tuckerman, Kennebec Bank «>. 5 Greenl. (Me.) 130, 296, 305 Tucker v. Davis, 15 Ga. 573, 434 Tucker, Graves v. 10 Smedes & Mar. (Miss.) 9, 353, 355 Tucker v. Laing, 2 Kay & Johns. 745, 212, 296 Tucker v. State, 11 Md. 322, 32 TABLE OF OASES. Cli Section Tucker e. Talbott, 15 Ind. 114, 852 Tucker, Waylandw. 4 Gratt. (Va.) 267, 209, 245, 258 Tucker v. White, 5 Allen, 322, 407 Tudor V. Goodloe, 1 B. Mon. (Ky.) 322, 309 Tufts, Bunker v. 55 Me. 180, 179 Tufts V. Plymouth Gold Mining Co. 14 Allen, 407, 66 Tunis, MiDer v. 10 Up. Can. 0. P. E. 423, 127 Tunentine, Trice v. 5 Iredell Law (So. Car.) 286, 438 Turbeville, Harrison v. 2 Humph. . (Tenn.) 242, ' 336 Tumour, Morrison v. 18 Vesey, 175, 75 Turrill v. Boynton, 23 Vt. 142, 309, 312 Turton v. Burke, 4 Wis. 119, 63 Tureman, Ashby v. 3 LitteU (Ky.) 6, 412 Tumey i>. Penn, 16 lU. 485, 115 Turrell, Carpenter v. 100 Mass. 450, 409 Turk, Crawford v. 24 Gratt. (Va.) 176, 531 Turley v. Hodge, 3 Humph. (Tenn.) 73, 35, 154 Turscott, Thomas ». 53 Barb. (N. T.) 200, 352 Turner, Aldridge v. 1 GiU & Johns. (Md.) 427, 6, 68 Turner, Bovill v. 2 Chitty, 205, 137 Turner v. Davies, 2 Bsp. 478, 229 Turner, Dickerson v. 15 Ind. 4, 156 Turner, Ferguson ». 7 Mo. 497, 382 Turner, Griffith v. 4 GiU (Md.) Ill, 520 Tumure v. Hohenthal, 4 Jones & Spencer (N. Y.) 79, 172 Turner v. Hubbell, 2 Day (Conn.) 457, 40 Turner, Hubert v. 4 Scott (N. R.) 486, 75 Turner, Jones v. 5 LitteU (Ky.) 147, 121 Turner, Kennebec Bank v. 2 Green- lief (Me.) 42, 18 Turner, Kirby u. 6 John's Ch. R. 242, 123 Sectiok Turner, MoCarter v. 49 Ga. 309, 17, 507 Turner, Mitchell v. 87 Ala. 660, 245 Twopenny v. Young, 3 Bam. & Cress. 208, 320 Twyuam, Coope v. 1 Turner & Ross 426, 224 Tyus V. De Jamete, 26 Ala. 280, 234, 261 Tyler, Binz v. 79 111. 248, 106 Tyler, Curtis v. 9 Paige Ch. R, 432, 282 Tyree v. Wilson, 9 Gratt. (Va.) 59, 458 Tynt, Tynt v. 2 Peere Wms. 542, 82 T^son {!. Passmore, 2 Pa. St. 122, 352 lYson, Reno v. 24 Ind. 56, 497 Uhler V. Applegate, 26 Pa. St. 140, 306,308 Uhler V. Farmers National Bank, 64 Pa. St. 406, 9 Uhler V. Semple, 5 C. E. Green (N. J.) 288, 188 Upton, Lookridge v. 24 Mo. 184, 504 Upton V. Vail, 6 Johns. 181, 59 Ulen V. Kittredge, 7 Mass. 233, 76 Underwood i>. Campbell, 14 New Hamp. 393, 68 Underwood ». Hossack, 38 111. 208, 7, 8, 147 Underwood, Vartie v. 18 Barb. (N. Y.) 561, 22 University of Cambridge v. Bald- win, 5 Mees. & Wels. 580, 99 Union Bank v. Beatty, 10 La. An. 378, 359 Union Bank v. Beech, 3 HurL & Colt, 672, 123 Union Bank v. Clossey, 10 Johns. 271, 479 Union Bank v. Coster's Exrs. 3 New York, 203, 67, 73, 167, 173 Union Bank v. Forstall, 6 La. (Cur- ry). 211, 368 Union City Bank, Garton v. 34 Mich. 279, 304 Union Bank v. Govan, 10 Smedes & Mar. (Miss.) 333, 21, 323, 378 clii TABLE OF CASES. Section Union Bank, Gustine v. 10 Robin- son (La.) 412, 325, 329 Union Bank w. McClung, 9 Humph. (Tenn.) 98, 004, 305 Union Bank, Obemdorff v. 31 Md. 126, 288 Union Bank v. Thompson, 8 Robin- son (La.) 227, 478, 479 United States v. Allsbury, 4 "Wal- lace, 186, 107 United States v. Archer's Exr. 1 Wallace,''jr. 173, 117 United States, Armstrongs. Peters' Cir. Ct. 46, 443 United States v. Boecker, 21 Wal- lace, 652, 344 United States, Broome v. 15 How- ard (U. S.) 143, 450 United States, Boody v. 1 Wood- bury & Minot, 150, 469 United States v. Boyd, 5 Howard (U. S.) 29, 522 United States v. Boyd, 15 Peters, 187, 449 United States, Bruce v. 17 How. (U. S.) 487, 30, 467 United States, Burroughs v. 2 Paine, 569, 282 United States v. Cheeseman, 3 Sawyer, 424, 142 United States v. Cochran, 2 Brock- enbrough, 274, 293 United States v. Corwine, 1 Bond, 389, ,347 United States v. Cranston, 3 Cranoh 289, 483 United States v. Cushman, 2 Sum- ner, 426, 117 United States v. Cutter, 2 Curtis, 617, 475, 521 United States, Dair v. 16 Wallace 1, 355 United States v. Eckford's Exrs. 1 Howard v. (U. S.) 250, 294 United States, Parrar v. 5 Peters, 373, 449 United States, Pindlay's Exr's v. 2 McLean, 44, 27 United States v. Gaussen Exr. 2 Woods, 92, 469 Section United States v. Hammond, 4 Bis- sell, 283, 349 United States v. Howell, 4 Wash- ington, 620, 313 United States, Hunt v. 1 Gallison, 32, 377, 474 United States, Hunter v. 5 Peters, 173, 377 United States v. Jones, 8 Peters, 399, ' 862 United States v. Kershner, 1 Bond, 432, 294 United States r. Kirkpatrick, 9 Wheaton, 720, 474 United States v. Le Baron, 19 Howard (U. S.) 73, 450 TTnited States v. Liun, 2 McLean, 501, 294 United States Bank, Long v. 1 Freeman's Ch. R. (Miss.) 375, 405 United States v. Mark's Sureties, 3 Wallace Jr. 358, 516 United States v. Mason, 2 Bond, 188, 444 United States v. Maurice, 2 Brock, 96, 445 United States, Myers v. 1 McLean, 493, 294, 499 United States v. Myndeise, 11 Blatchford, 1, 443 United States v. Nicholl, 12 Wheat- on, 505, 475 United States, Pawling v. 4 Cranch, 219, 357 United States, Osborne v. 19 Wal- lace, 577, 475 United States, Sharp v. 4 Watts (Pa.) 21, 357, 442 United States v. Simpson, 3 Pen. & Watts (Pa.) 437, 296 United States, Smith v. 2 Wallace (U. S.) 219, 334 United States v. Spencer, 2 Mc- Lean, 405 449 United States v. Stansbury, 1 Pe- ters, 373, 377 United States v. Sturges, 1 Paine, 525, 377 TABLE OF CASES. cliii Section United States v. Tillotson, 1 Paine, 805. 330 United States v. Truesdell, 2 Bond, 78, 145 United States v. Vanzandt, 11 Wheaton, 184, 475 United States v. Wardwell, 5 Ma- son, 82, 461 United States v. White, 4 Wash- ington, 414, 451 United States, WUliams v. 1 How- ard (U. S.) 290, 522 United States v. Woodman, 1 Utah, 265, 344 United States v. Wright, 1 Mc- Lean, 509, 460 Unselt, Wilson v. 12 Bush (Ky.) 215, 499 Vail V. Foster, 4 New Yorli, 312, 282 Vail, Upton v. 6 Johns. 181, 59 Valle, Bean v. 2 Mo. 103, 68 Vallaton v. Gardner, E. M. Charl- ton (Ga.J 86, 161 Vallandingham, Knox v. 13, Smedes & Mar. (Miss.) 526, 230 Valentine v. Christie, 1 Robinson (La.) 298, 15 Valentine, FuUam «. 11 Pick. 156, 425 Vanzandt, United States v. 11 Wheaton, 184, 475 Vananda, State v. 7 Blackf. (Ind.) 214, 487 Van Wart v. Carpenter, 21 Up. Can. Q. B. R. 320, 97 Vanmater, Shook v. 22 Wis. 507, 50 Vaun, May i>. 15 Fla. 553, 259 Vann v. Pipkin, 77 Nor. Car. 408, 487 Van Koughnet v. Mills, 5. Grant's Ch. R. 653, ' 325 Vanduseu, Shaw v. 5 Up. Can. Q. B. R. 353, 98 Vandusen, State v. 5 Up. Can. Q. B. R. 353, 98 Vance v. Lancaster, 3 Haywood, (Tenn.) 130, 183 Vance, Suydam v. 2 McLean, 99, 321, 325 Section Vanderbergh v. Vanderbergh, Law Rep. 1 Exch. 316, 67 Vanderlyn, Elting v. 4 Johns. 237, 8 Van Arman, Goles' Admx. v. 18 Ohio, 336, 115 Van Campen, Abbey v. 1 Freem. Ch. R. (Miss.) 273, 196 Van Cortland, Parkhurst v. 14 Johns. 15, 66 Van Derveer v. Wright, 6 Barb. (N. Y.) 547, 80, 119 Van Dusen, Jackson v. 5 Johns. 144, 75 Van Dusen, Sears v. 25 Mich. 351, 295 Van Dusen, Taylor v. 8 Gray, 498, 82 Van Doren v. Tjader, 1 Nevada, 380, 147 Van Epps v. Walsh, 1 Woods. 598, 470 Van Hook, McCreary v. 35 Tex. 631, 9 Van Lear, Dodge v. 5 Cranch 0. C. 278, 66 Van Mierop, Pillans ». 8 Burr. 1663, 9, 53, 68 Van Mater, Shook v. 22 Wis. 507, 46 Van Norden, Washburn v. 28 La. An. 768, 109 Van Nostrand, Gardner v. 13 Wis. 543, 321 Van Orden v. Durham, 35 Cal. 136, 284 Vanpelt, Craig v. 3 J. J. Marsh. (Ky.) 489, 38 Van Reimsdyok v. Kane, 1 Galli- son C. C. 633, 53 Van Rensselaer, Hamilton v. 43 New York, 214, 110 Van Rensselaer, Hamilton v. 43 Barb. (N. Y.) 117, 92 Van Rensselaer ». Kirkpatrick, 46 Barb. (N. Y.) 194, 308 Van Rensselaer, Livingston v. 6 Wend. 63, 233 Van Slyck v. Pulver, HOI & Denio (Lalor's sup.) 47, 50 Van Volkenburgh, Woolley v. 16 Kansas, 20, 106 Van Vorst's Admr. Morris Canal & Banking Co. v. 1 Zabriskie (N. J.) 100, 343, 369, 479 eliv TABLE OF OASES. Section Van Wagenen, Tappen v. 3 Johns. •465, 436 Van "Wart v. Carpenter, 21 Up. Can. Q. B. R. 320, 96 Varrell, Andrews ». 46 NewHamp. 17, 203 Vamarn v. Harris, 1 Hun (N. T.) 451, 23 Vartie v. Underwood, 18 Barb. N. Y. 561, 22 Vaughan v. Evans, 1 Hill Eq. (So. Car.) 414, 467 Vaugh, Johnson's Admrs. i>. 65 111. 425, 256, 328 Veazie v. Carr, 3 Allen, 14, 312 Veazie v. Willis, 6 Gray, 90, 359 Vedder, Albany Dutch Church v. 14 Wend. 165, 869 Venables, Harris v. Law Rep. 7 Bxoh. 235, 8 Vernon, Pendexter v. 9 Humph. (Tenn.)84, 320 Verret v. Belanger, 6 La. An. 109, 532 Viele «. Hoag, 24 Vt. 46, 209, 210 Viele 0. Osgood, 8 Barb. (N. Y.) 180, 66, 75 Vilas V. Jones, New York, 274, 209, 310 Vilas V. Jones, 10 Paige Ch. E. 76, 309 Vilas, People v. 36 New York, 459, 469 Villars v. Palmer, 67 lU. 204, 892 Vinal V. Richardson, 18 AUen, 521, 9,172 Vineyard, Prather v. 4 GUman (lU.) 40, 49 Virden v. Ellsworth, 15 Lid. 144, 115, 172 Vivian v. Otis, 24 Wis. 518, 466 Voiles V. Green, 43 Ind. 374, 332 Volkenning, Poillon e. 11 Hun (N. Y.) 385, 524 Voltz V. Harris, 40 lU. 155, 172, 178 Von Doren v. T^'ader, 1 Nevada 380, 74 Voorhees, Paine v. 26 Wis. 522, 818 Voorhies v. Atlee, 29 Iowa, 49, 85 Voris V. State, 47 Ind. 345, 493 Section Voss V. Florida R. R. Co. 50 New York. 369. 861 Voss V. German American Bank, 58 111. 599, 877 Vredenburg, Leonard v. 8 Johns. 29, 6, 7, 9, 68 Vredenburg v. Snyder, 6 Iowa (Clarke) 39, 892 Vredenbergh, Waddington v. 2 Johns. Cas. 227, 23 Waddington v. Vredenbergh, 2 Johns. Cas. 227, 28 Wade, Bambridge v. 16 Ad. & EU. N. S. 89, 68, 70, 72 Wade V. Coope, 2 Simons, 155, 279 Wade, Dunn v. 23 Mo. 207, 225 Wade V. Green, 3 Humph. (Tenn.) 647, 185 Wade, Tatt'on v. 18 Com. B. 370, 59 Wade V. Staunton, 5 Howard (Miss.) 681, 319 Wade's Exr. Saffold v. 61 Ala. 214. 282 Wadlington v. Gary, 7 Smedes & Mar. (Miss.) 522, 296, 308 Wadlington, MuUer v. 5 Richard- son (N. S.) So. Car. 342, 375 Wadsworthi). Allen, 8 Gratt. (Va.) 174, 97, 165, 174 Wadsworth, Morris v. 17 Wend. 103, 169 Waful, Hosier v. 56 Barb. (N. Y.) 80, 84 Wagner, Mease v. 1 McCord (So. Car.) 395, 44 Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257, 54 Wain V. Warlters, 5 East, 10, 68, 71 Wainwright v. Straw, 15 Vt. 215, 62 Wait V. Wait, 28 Vt. 850, 58 Wakeman v. Gowdy, 10 Bosw. (N. Y.) 208, 384 Wakeman v. Sutton, 2 Adol. & Ell. 78, 77 Wakeford, Wright v. 17 Vesey, 454, 75 Wakefield v. Greenhood, 29 Cal. 597, 60 TABLE OF OASES. dv Section Wakefield v. McKinneU, 9 La. (Curry) 449, 428 Wakefield, Saunders o. 4 Bam. & Aid. 595, 6, 68 Wakefield Bank v. Truesdell, 55 Barb. (N.Y.) 602, 305 Waldo, Riggs v. 2 Cal. 485, 148 Waldron v. Young, 9 Heisk. (Tenn.) 777, 333 Walden, Carney v. 16 B. Mon. (Ky.) 388, 111 Walker v. Constable, 1 Bos. & Pul. 306, 76 Walker v, Hardman, 4 Clark & Finnelly, 258, 107 Walker, Lysagbt v. 5 Bligh (N. R.) 1, 70, 72, 287, 521 Walker, Lysaght v. 2 Dow & Clark, 211, 70, 521 Walker v. Lathrop, 6 Iowa (Clarke) 616, 199 Walker v. McKay, 2 Met. (Ky.) 294, 195 Walker, Pendlebury v. 4 Tounge & Coll. (Exch.) 424, 224, 850 Walker v. Pierce, 21 Gratt. (Va.) 722, 518 Walker, Ontario Bank v. 1 Hill (N. T.) 652, 272 Walker v. Richards, 41 New Hamp. 388, 64 Walker v. Richards, 39 New Hamp. 259, 62, 77 Walker D. Sherman, 11 Met. (Mass.) 170, 8 Walker i^. Taylor, 6 Car. & Pa. 752, 51 Walker, Wharton v. 4 Barn. & Cress. 163, 52 Walker, Wharton v. 6 Dow. & Ry. 288, ' 52 Walker, White v. 31 111. 422, 172, 211, 327, 336 Wallace, BeUume v. 2 Rich. Law (So. Car.) 80, 213 Wallace, Glenn vA Strob. Eq. (So. Car.) 149, 463 Wallace v. Hudson, 37 Tex. 456, 22 Wallace v. Holly, 13 Ga. 389, 489 Section Wallace, Ordinary v. 1 Richardson Law (So. Car.) 507, 532 Wallace, Ordinary v. 2 Richardson Law (So. Car.) 460, 632 Waller v. CampbeU, 25 Ala. 544, 246 Waller, 1 Coleman v. Tounge & Jer. 212, 362 Waller, Ennis v. 8 Blackf. (Ind.) 472, 76 Waller, McKenny's Exrs. v. 1 Leigh (Va.) 434, 382 Wallers' Heirs, Moore ». 1 A. E. Marsh. (Ky.) 488, 126 Wall, Carpenter v. 4 Dev. & Batt. (Nor. Car.) 144, 53 Wall, Swain v. 1 Reports in Chan- cery, 149, 252 Walmsly, Lawrence v. 12 J. Scott (N. S ) 799, 315, 350 Walrath v. Thompson, 6 Hill, 540, 345 Walrath v. Thompson, 4 HiU, 200, 72 Walsh V. Bailie, 10 Johns. 180, 97 Walsh, Gardner v. 5 Ellis & Black. 83, 332 Walsh, Van Epps v. 1 Woods, 598, 470 Walton, Anderson v. 35 Ga. 202, 193 Walton, Clay v. 9 Cal. 328, 56 Walton V. MascaU, 13 Mees. & Wels. 72, " 172 Walton V. Maspall, 18 Mees. & Wels. 462, 170 Walters w. Swallow, 6 Wharton (Pa.) 446, 800, 805 Wandel, Supervisors of Richm'nd Co. V. 6 Lansing, (N. T.) 33, 455, 476 Wann v. People, 57 lU. 202, 473 Wannemacher, Lemed v. 9 Allen, 412, 66, 75 Waples 1). Derrickson, 1 Harring- ton (Del.) 184, 435 Ware v. Stephenson, 10 Leigh (Va.) 156, 61 Ware v. Adams, 24 Me. 177, 9 Ware ex parte, 5 Richardson Bq. (So. Car.) 473, ' 273 Wardlaw v. Harrison, 11 Rich. Law (So. Car.) 626, 159 clvi TABLE OF OASES. Section WardeU, Green v. 17 111. 278, 445 Warden, Phyfe v. 2 Edwards Ch. 47, 352 Warden, Barringer v. 12 Cal. 311, 52 Wardens of St. Saviors Southwark V. Bostock, 5 Bos. & Pul. 175, 140 Ward, Armstead v. 2 Patten, Jr. & Heath (Va.) 504, 309, 317 Ward V. Churn, 18 Gratt. (Va.) 801, 357 Ward V. Ely, 1 Der. Law (Nor. Car.) 372, 88 Ward V. Henry, 5 Ct. '595, 180 Ward, Hayes ». 4 Johns Ch. 123 82, 204, 205 Ward V. Johnson, 6 Munf. (Va.) 6, 325 Ward, Lamonte v. 36 Wis.' 558, 424 Ward, MoKecknie v. 58 New York, 541, 322 Ward ». Northern Bank of Ken- tucky, 14 B. Mon. (Ky.) 283, 94 Ward, Reynolds v. 5 Wend. 501, 307 Ward V. Stout, 32 111. 399, 17, 20 Ward, Spear v. 20 Cal. 659, 22 Ward V. Wick Bros., 17 Ohio St. 159, 298 WardweU, United States v. 5 Ma- son, 82, . 461 Warfel v. Frantz, 76 Pa. St. 88, 357 Warfield, Elder v. 7 Harr. & Johns. (Md.) 391, 62, 63 Warfield v. Ludewig, 9 Robinson (La.) 240, 296 Waring, Couch v. 9 Ct. 261, 124 Warlters, Wain v. 5 East, 10, 68, 71 Warner, Admr's of Pond v. 2 Vt. 532, 190, 191 Warner v. Beardsley, 8 Wend. 194, 206 Warner v. Campbell, 26 lU. 282, 305 Warner, Harris v. 16 Wend. 400, 224 Warner v. Morrison, 3 Allen, 656, 223, 232 Warner, SneU v. 63 111. 176, 180 Warner v. Price, 3 Wend. 397, 223 Warre ». Calvert, 2 Nev. & Per. 126, 102 Warre v. Calvert, 7 Adol. ^ Ell. 143, 102 Section Warren v. Barker, 2 Duvall (Ky.) 155, 59 Warren v. Gilmore, 11 Cuah. 15, 431 Warren, Rathbone v. 10 Johns. ■ 587, 210, 425 Warren v. State, 11 Mo. 588, 458 Warring, Richards u. 4 Abbott's Rep. Omitted Cas. 47, 150 Warrington v. Furbor, 8 East, 242, 178, 180 Warwick v. State, 5 Ind. 350, 493 Washington, Champonier v. 2 La. An. 1,013, 404 Washburn v. Van Norden, 28 La. An. 768, 109 Washburn, Wood v. 2 Pick. 24, 127 Washburn, Wheeler v. 24 Vt. 293, 323 Waterman v. Clark, 76 111. 428, 203 Waterman v. Meigs, 4 Cush. 497, 67 Waterville Bank v. Redington, 52 Me. 466, 28 Waters v. Creagh, 4 Stew. & Port. (Ala.) 410, ^ 211 Waters v. Carroll, 9 Terger (Tenn.) 102, 453 Waters, Chambers v. 7 Cal. 390, 420 Waters v. Riley, 2 Harris & Gill (Md.) 305, 248 Waters, Rogers v. 2 GUI & Johns. (Md.) 64, 54 Waters v. Simpson, 2 GUman (lU.) 570, 324 Waterhouse, Fielding v. 8 Jones & Spencer (N. Y.) 424, 235, 260, 370 Watkins, Hempstead v. 6 Ark. (1 Eng.) 317, 206 Watkins v. Perkins, 1 Ld. Raym. 224, 63 Watkins, State Bank ». 6 Ark. (1 Eng.) 123, 209 Watkins i;. Worthington, 2 Bland's Ch. R. (Md.) 509, 200 Watlington, Goss v. 3 Brod. & Bing. 132, 523 Watlington, Goss v. 6 Moore, 355, 523 Watriss v. Pierce, 32 New Hamp. 560, 25, 209, 337 Watrous v. Chalker, 7 Conn. 224, 38 TABLE OF OASES. clvii Section Watson V. Alcock, 4 De Gex, Macn. & Gor. 242, 388 Watson V. Alcock, 1 Smale & Gif- fard, 819, 388 Watson V. Beabout, 18 Ind. 281, 115 Watson, Gardner v. 13 111. 347, 298 Watson, Goodyear v. 14 Barb. (N. Y.) 481, 271 Watson, Hamilton v. 12 Clark & Knnelly, 109, 365 Watson V. Hurt, 6 Gratt. (,Va.) 633, 147 Watson «. Jacobs, 29 Vt. 169, 48 Watson, Ludwig v. 3 Oreg. 256, 9 Watson, Mills v. 1 Sweeny (N. T.) 874, 24 Watson, Penoyer v. 16 Johns. 100, 97 Watson V. Poague, 42 Iowa, 582, 290 Watson V. Eandall, 20 Wend. 201, 48 Watson V. Read, 1 Cooper's Ch. R. (Tenn.) 196, 378 Watson V. Rose's Exrs. 51 Ala. 292, 284 Watson, Sanders v. 14 Ala. 198, 280 Watson, Screws v. 48 Ala. 628, 423 Watson V. Sutherland, 1 Cooper, Ch. R. (Tenn.) 208, 204 Watson, Thompson v. 10 Terg. (Tenn.) 362, 206 Watson V. Whitten, 8 Richardson Law (So. Car.) 224, 501 Watson's Exrs. McLaren v. 26 Wend. 425, 33 Watt, Wright v. 52 Miss. 634, 878 Watts, Burch v. 37 Texas, 135, 410 Watts V. Pettit, 1 Bush (Ky.) 154, 461 Watts, Reid v. 4 J. J. Marsh. (Ky.) 440, 296 Watts V. Shuttleworth, 7 Hurl. & Nor. 353, 873, 887 Watts V. Shuttleworth, 5 Hurl. & Nor. 285, 352, 387 Wayland v. Tucker, 4 Gratt. (Va.) 267, 209, 245, 258 Wayman, Dorsey v. 6 Gill (Md.) 59, 392 Wayman, State v. 2 GUI & Johns. (Md.) 254, 93, 141 Way V. Heam, 11 J. Scott (N. S.) 774, 303 Section Way v. Lewis, 115 Mass. 26, 526 Way V. Wright, 5 Met. (Mass.) 380, 431 Wayne v. Com. Natl. Bank, 52 Pa. St. 343, • 104, 367 Wayne «. Ku-by, 2 Bailey Law (So. Car.) 551, 209, 325 Wayne v. Sands, Freem. 531, 5 Weatherwax, Johnson ». 9 Kansas, 75, ' 357, 405 Weatherby t). ShacHeford, 37 Miss. 559, 412 Weare v. Sawyer, 44 New Hamp. 198, 124,352 Weaver v. Shryock, 6 Serg. & Rawle (Pa.) 262, 117 Weaver v. Tapscott, 9 Leigh (Va.) 424, 186 Weaver, White v. 41 111. 409, 147 Webb V. Anspach, 3 Ohio St. 522, 457 Webb V. Baird, 27 Ind. 368, 855 Webb V. Hewitt, 8 Kay & Johns. 438, 123, 329 Weber, Detroit v. 26 Mich. 284, 468, 474, 476 Webster v. Cobb, 17 111. 459, 33, 147 Webster, Commonwealth v. 1 Bush (Ky.) 616, 430 Webster, Payne v. 19 111. 103, 503 Webster, Pico v. 14 Cal. 202, 580 Wedgewood, Inhabitants of Orono V. 44 Me. 49, 447 Weeks v. Burton, 7 Vt. 67, 59 Weed V. Bentley, 6 HiU (N, T.) 56, 201 Weed V. Clark, 4 Sandf. (N.T. Su- perior Ct.) 31, 71 Weed, Holmes v. 24 Barb. (N. T.) 546, 187 Weed Sewing Machine Co. v. Ober- reich, 38 Wis. 325, 317 Weed Sewing Machine Co. v. Max- well, 63 Mo. 486, 128 Weissman, Schuster v. 63 Mo. 552, 472 Weiler v. Hoch, 25 Pa. St. 525, 206 Weiner v. Bunbury, 30 Mich. :^0l, 514 Weimar ». Shelton, 7 Mo. 237, 202 Welchman, Howard Banking Com- pany V. 6 BoBW. (N. T.) 280, 125 clviii TABLE OF OASES. Section Welch, Bell v. 9 Man. Gr. & Scott, 154, 71 Welch. Louisville Manuf. Co. v. 10 Howard (U. S.) 461, 103, 173, 174 Welch V. Seymour, 28 Ct. 387, 119, 139 Welsh V. Barro-w, 9 Robinson (La.) 535, 443 Welsh V. Welch, 4 Maule & Sel. 383, 189 Weld, Carroll v. 13 111. 682, 147, 153 Weld, Draper v. 13 Gray, 580, 303 Weld V. Nichols, 17 Pick. 538, 46, 58 Welles, Thomas v. 1 Root (Conn.) 57, 60 Welles, Myers v. 5 HiU (N. T.) 463, 317 Welford v. Beezely, 1 Ves. Sr. 6, 75 Weller, Oaks». 16 Vt. 63, 174, 175 Weller, Oaks v. 13 Vt. 106, 158 Weller v. Ranson, 34 Mo. 362, 814 Wells V. Girling, 1 Brod. & Bing. 447; Id. 4 Moore, 78, 11 Wells V. Girling, 8 Taunt. 737, 116 Wells V. Grant, 4 Yerg. (Tenn.) 491, '457 Wells, Hayes v. 34 Md. 612, 298, 313 Wells V. Mace, 17 Vt. 503, 189 Wells V. Mann, 45 New York, 327, 9 Wells, Merle v. 2 Camp. 413, 134 Wells V. Moore, 3 Robinson, (La.) 156, 108 Wells V, Miller, 66 New York, 255, 228 Wells, PhilUps V. 2 Sneed (Tenn.) 154, 39 i Wells, State v. 8 Nevada, 105, , 445 Wellmans, Pearl d. 11 111. 852, 401 Wellington, Huntington v. 12 Mich. 1, 53, 59 Welster v. Ela, 5 New Hamp. 540, 67 Wonrick, Commonwealth v. 8 Watts (Pa.) 159, 495 Wentworth, Brigham v. 11 Cush. 123, 346 Wentworth, Goodall v. 20 Me. 322, 231 Wesley Church v. Moore, 10 Pa. St. 273, 176, 199 Section Westmoreland Bank, Ramsey v. 2 Pen. & Watts (Pa.) 203, 387 Westhead v. Sproson, 6 Hurl. & Nor. 728, 9 West V. Ashdown, 1 Bingham, 164, 425 West V. Belches, 5 Munford (Va.) 187, 234 West V. Bank of Rutland, 19 Vt. 403, 178 West V. Chasten, 12 Fla. 315, 23, 192 West, Dunn v. 5 B. Mon. (Ky.) 876, 46 West V. Laraway, 28 Mich. 464, 4 West, Springfield Manf. Co. v. 1 Cush. 388, 484 Westfall, Chandler v. 30 Texas, 475, 147, 153 Westfall, Kingsbury v. 61 New York, 356, 79, 90, 339 Westfall, Suydam v. 2 Denio, 205, 156 WestfaU, Suydam v. 4 Hill, 211, 156 Western N. Y. Life Ins. Co. v. Clinton, 66 New York, 326, 353 Western v. Russell, 3 Vesey & Bea. 187, 66, 75 Western Reserve Bank, Commer- cial Bank v. 11 Ohio, 444, 27, 380 Western Reserve Bank, Baldwin V. 5 Ohio, 273, 299 Western Stage Co., Whiting v. 20 Iowa, 554, ' 303 Westphal v. Moulton, 45 Iowa, 163, 88 Wetherbee v. Potter. 99 Mass. 354, 38 Wetherbee, Trowbridge v. 11 Al- len, 861, 38 Wetherell, Sigourney ». 6 Met. (Mass.) 553, 119,319 Wetmore, Taylor v. 10 Ohio, 490, 97, 167 Wetzel V. Sponsler's Exrs. 18 Pa. St. 460, 206,207 Weymouth, Bordelon v. 14 La. An. 93, 817 Wharton v. Duncan, 88 Pa. St. 40, 370 Wharton v. Walker, 4 Bam, & Cress. 163, 52 Wharton v. Walker, 6 Bow.. & Ry. 288, 52 TABLE OF OASES. clix Section Wharam, Matson ». 2 Terra R. 80, 61, 62, 63, 64 Wteat V. Kendall, 6 New Hamp. 504, 19, 307 Wlieatley's Heirs v. Calhoun, 12 Leigh (Va.) 264, 262 Wheeler v. Collier, Moo. & Mai. 123, 67 Wheeler v. Lewis, 11 Vt. 265, 84, 85 Wheeler, Mayfleld v. 37 Texas, 256, 96, 157, 161 Wheeler v. Mayfleld, 31 Texas, 395, 96 Wheeler, Reynold v. 10 J. Scott (N. S.) 561, 225 Wheeler v. State, 9 Heiskell (Tenn.) 393, 478, 518 Wheeler, Tillman v. 17 Johns. 326, 150 Wheeler v. Washburn, 24 Vt. 293, 823 Wheeler, Wilson v. 29 Vt. 484, 302 Wheeler v. Wheeler, 7 Mass. 169, 426 Wheel ock, Cobum v. 34 New York, 440, , 252 Wheelock, Wood v. 25 Barb. (N. t.) 625, 53 Wheelock, Yale v. 109 Mass. 502, 128 Wheelwright v. DePeyster, 4 Ed- ward's Ch. R. 232, ' 22 Wheelwright, Loomerj;. 3 Sanford's Ch. R. 135, 22 Wheelwright v. Moore, 2 HaU (N. Y.) 162, , 7 Wheler v. Newton, 2 Eq. Cas. 44, c. 5, 75 Whelan v. Keegan, 7 Irish Com. Law R. 544, 133 Whitehead, Amnions v. 31 Miss. 99, 400 Whitehead, Jones v. 4 6a. 397, 1, 512 Whitehead, Knight v. 26 Miss. 245, 22 Whitehead v. Peck, 1 Kelly (Ga.) 140, 185, 202 Whitehead v. Woolfolk, 3 La. An. 42, 525 Whitfield V. Hodges, 2 Gale, 127,, 425 Whitfield V. Hodges, 1 Mess. & Wels. 679, 425 Whitehurst v. Coleen, 53 111. 247, 514 Whitworth v. Tilman, 40 Miss. 76, 187 Section Whitridge v. Durkee, 2 Md. Ch. R. 442, 205 Whipple V. Briggs, 30 Vt. Ill, 197 Whipple V. Briggs, 28 Vt. 65, 179 Whipple, Dunphy v. 25 Mich. 10, 458 Whittle V. Skinner, 23 Vt. 531, 306 Whinray, Northwestern R. R. Co. ■0. 1 Hurl. & Gor. (10 Exch.) 77, 341 Whiting V. Burke, Law Rep. 6 Ch. Appl. Cas. 342, 222 Whiting V. Burke, Law Rep. 10 Eq. Cas. 589, 222 Whiting V. Clark, 17 Cal. 407, 296 Whiting V. Western Stage Co. 20 Iowa, 554, 303 Whitmarsh v. Genge, 3 Man. & Ryl. 42, 523 Whitmarsh, Gillett v. 8 Adol. & Ell. (N. S.) 966, 361 Whitman v. Bryant, 49 Vt. 512, 61 Whitman, First Natl. Bank Mon- mouth V. 66 m. 331, 800, 852 Whitman t. Gaddie, 7 B. Mon. (Ky.) 591, 224 Whitman, Hartwell v. 36 Ala. 712, 233 Whitnash v. George, 8 Bam. & Cres. 556, 523 Whitaker v. Crutoher, 5 Bush (Ky.) 621, 855 Whitaker v. Kirby, 54 Ga. 277, 211 Whitaker v. Rice, 9 Minn. 18, 120 Whitaker, WiUison v. 2 Marshall, 883, 425 Whitaker, Willison «. 7 Taunt. 53, 425 Whittemore, Hendrick v. 105 Mass. 23, 46, 229 Whittemore v. Obear, 58 Mo. 280, 350 Whitehouse v. Hanson, 42 New Hamp. 9, 46, 223 Whitehouse, ffinde -». 7 East, 558, 76 Whitchoctt, Johnson v. 1 Roll. Abr. 24 PI. 33, 8 Whiton V. Mears, 11 Met. (Mass.) 563, 148, 168 Whiteford, Buoley v. Hayes, (Irish Rep.) 356, 71 Whitcomb v. Kephart, 50 Pa. St. 85, 43 clx TABLE OF CASES. Section Whitcomb, Lees v. 5 Bing. 34, 71 Whitney v. Allen, 21 Cal. 233, 403 Whitney v. Groot, 24 Wend. 82, 137, 167 Whitney, McKinney v. 8 Allen, 207, 59 Whitney v. Steams, 16 Me. 394, 70 Whitney, White v. 51 Ind. 124, 309 White V. Ault, 19 Ga. 551, 21 White V. Banks, 21 Ala. 705, 234 White V. Blake, 22 Wend. 612, 429 White, Blake v. 1 Tounge & CoH. (Exch.J 420, 305 White V. Carlton, 52 Ind. 371, 236, 249 White V. Case, 13 Wend. 543, 83, 85 White V. Cuyler, 6 Durn. & Bast, 176, 215 White V. Cuyler, 1 Esp. 200, 44 White V. Cuyler, 6 Term R. 176, 44 White, Doyle ». 26 Me. 341, 62 White, Easter v. 12 Ohio St. 219, 47 White, Exrs. of White v. 30 Vt. 338, 180 White, Gallagher v. 31 Barb. (N. T.) 92, 85, 112 White V. German Natl. Bank of Memphis, 9 Heisk. (Tenn.) 475, 518 White, Hall v. 27 Ct. 488, 438, 525 White, Longpre v. 6 La. (Curry) 388, 502 White, Maryatts v. 2 Starkie, 101, 287 White V. Miller, 47 Ind. 385, 176, 181 White, People «. 11 111. 341, 892 White, Powell's Exrs. v. 11 Leigh (Va.) 309, 273 White ». Prigmore, 29 Ark. 208, 398 White «. Proctor, 4 Taunt, 209, 76 White V. Reed, 15 Conn, 457, 78, 136 White, Resgart v. 52 Pa. St. 438, 1 White, Schloss v. 16 Cal. 65, 483, White V. Smith, 33 Pa. St. 186, 340 White V. Smith, 2 Jones Law (Nor. Car.) 4, 466 White, Sneed's Exrs. v. 3 J. J. Mar. (Ky.) 525, 48 White V. State, 1 Blackf. (Ind.) 557, 530 White, State v. 10 Richardson Law (So. Car.) 442, 451 Section White, Stone v. 8 Gray, 589, 332 White, Tucker v. 5 Allen, 322, 407 White, United States v. 4 Wash- ington, 414, 451 White V. Walker, 31 111. 422, 172, 211, 327, 336 White V. Weaver, 41 111. 409, 147 White v. Whitney, 51 Ind. 124, 309 White V. Woodward, 6 Com. B. 810, 9, 70 White's Exrs. v. Commonwealth, 30 Pa. St. 167, 113 Whittier v. Dana, 10 Allen, 326, 67 Whittier, Rowo v. 21 Me. 545, 52 Whitten, Watson v. 3 Richardson, Law (So. Car.) 224, 501 Whyle, Evans v. 6 Bing. 485, 102 Whyle, Evans v. 3 Moore & Payne 130, 102 Whyte, Goddard v. 2 Giffard, 449, 263 Wickham v. Wickham, 2 Kay & Johns. 478, 57 Wick Bros. Ward v. 17 Ohio St. 159, 298 Widener v. State, 45 Ind. 244, 481 Wiggam, Calvin v. 27 Ind. 489, 309 Wiggins, Russell v. 2 Story Rep. 214, 67 Wilcox, Cooper v. 2 Devereux & Bat. Eq. (Nor. Car.) 90, 378 Wilcox ». Fairhaven Bank, 7 Allen 270, 266 Wilcox, McNutt'v. 1 Freeman's Ch. R. (Miss.) 116, 27 Wilcox, McNutt V. 3 Howard (Miss.) 417, 406 Wilcox, Sage v. 6 Conn. 81, 8, 39, 68, 168 Wilcox V. Todd, 64 Mo. 388, 22 Wilcox, Wise V. 1 Day, (Conn.) 22, 89 Wilcox, Woodward v. 27 Ind. 207, 50 Wild Cat Branch v. Ball, 45 Ind. 213, 357 Wilde V. Haycraft, 2 Duvall (Ky.) 309, 135 Wnde V. Jenkins, 4 Paige, 481, 23 Wildes V. Savage, 1 Story, 22, 163, 167, 173 TABLE OF OASES. clxi Section Wildin, Tayleur v. Law Rep. 2 Exch. 303, 90, 137 Waey V. HigM, 39 Mo. 130, 310 "Wiley V. Roberts, 27 Mo. 388, 66 WHe V. Wright, 32 Iowa, 451 , 216 Wilkins, Bittick v. 7 Heisk. (Tenn.) 807, 277 ■Wilkins, Holbrow v. 2 Dow. & Ry. 59, 172 Wilkins, Holbrow v. 1 Barn. & Cress. 10, 172 Wilkins, Jarvis v. 7 Maes. & Wels. 410, , 70 Wilkins, Talbot v. 31 Ark. 411, 260 Wilkins' Admr. Carlisle v. 51 Ala. 371, 283 Wilkinson v. Evans, Law Rep. 1 C. P. 407, 66 Wilkinson, Taylor v. 1 Neville & Perry, 629, 435 Williamson, Dumont i). 18 Ohio St. 515, 16 Williamson v. Howell, 4 Ala. 693, 582 Williamson, Lasher v. 55 New York, 619,- 203 Williamson, Mitchell v. 6 Md. 210, 82, 892 Williamson's Admr. Hall v. 9 Ohio St. 17, 411 WiUiamsou's Admr. v. Hall, 1 Ohio St. 190, 411 Williamson's Admr. v. Rees's Admr. 15 Ohio, 573, 259 Willison V. Whitaker, 7 Taunt. 53, 425 Willison t). Whitaker, 2 Marshall, 383, 425 Willace v. Jewell, 21 Ohio St. 163, 332 Willis, Bartlett v. 3 Mass. 86, 12 WilHs V. Davis, 3 Minn. 17, 870 Willis V. Ives, 1 Sm. & Mar. (Miss.) 807, 18 Willis, Veazie v. 6 Gray, 90, 359 Willis V. Willis, 17 Simons, 218, 348 Williams v. Bacon, 2 Gray, 387, 66, 76 Williams v. Bosson, 11 Ohio, 62, 156 WiUiams, Brettel v. 4 Wels. Hurl. & Gor. 623, 10, 66, 73 Williams, Connor v. Rob. (N. T.) 46, 52 Section Williams v. Cheny, 8 Gray, 215, 191 Williams v. Covilland, 10 Cal. 419, 318 Williams, Dvsright ii. 4 McLean, 581, 84 Williams ex parte, 4 Yerg. (Tenn.) 579, 61, 62 Williams v. Ewing, 81 Ark. 229, 248 Williams v. Gilchrist, 11 New Hamp. 535, 290 Williams v. Granger, 4 Day (Conn.) 444, 170 Williams v. Greer, 4 Haywood (Tenn.) 235, , " 184 Williams, Gregory v. 3 Meriv. 582, 58 Williams v. Helme, 1 Dev. Eq. (No. Car.) 151, 196 Williams, Hogshead v. 55 Ind. 145, 208 Williams, Hutton v. 35 Ala. 503, 76 Williams, James v. 3 Nev. & Man. 196, 68 Williams, James v. 5 Nev. & Man. 196, 71 Williams, James v. 5 Bam. & Adol. 1109, 71 Williams, Kellar v. 10 Bush (Ky.) 216, 227, 895 Williams v. Ketchum, 19 Wis. 231, 70 Williams, Kingsbmy v. 53 Barb. (N. Y.) 142, 339 Williams v. Lake, 2 Ell. & Ell. 849, 67 Williams v. Leper. 3 Burr. 1886; Id. 2 WiUs, 308, 49, 50, 51, 54 Williams, Lessee i\ 6 Lans. 228, 9 Williams k Marshall, 42 Barb. 524, , 9, 127 WiUiams v. Martin, 2 Duvall (Ky.) 491, 318 Williams, Nelson v. 2 Dev. & Bat. Eq. (Nor. Car.) 118, 379 Williams /•. Owen, 13 Simons, 597, 275 AVillianis, Parsons v. 9 Ct. 236, ' 422 Williams v. Perkins, 21 Ark. 18, 7 Williams, Pool v. 8 Ired. Law (Nor. Car.) 286, 236 Williams, Prior v. 3 Abb. Rep. Om. Cas. 624, 118 Williams v. RawKnson, Ryan & Moody, 233, 133 clxii TABLE OF OASES. Section Williams v. Reynolds, 11 La. (Curry) 230, 113, 295 Williams, Rose v. 5 Kansas, 483, 17, 305 Williams v. Smith, 48 Me. 135, 805 Williams, Stringf'ellow v. 6 Dana (Ky.) 236, 380 Williams, Thomas v. 10 Barn. & Cress. 664, 9, 38, 54 Williams v. Tipton, 5 Humph. (Tenn.) 66, 195, 266 Williams v. Townsend, 1 Bosworth (N. Y.)411, 320 Williams v. United States, 1 How- ard (U. S.) 290, 522 Williams, Womell v. 19 Texas, 180, 391 Williams, Woodt). 61 Mo. 63, 461 Williams v. Wood, 16 Md. 220, 75, 76 Williams v. Wright, 9 Humph. (Tenn.) 493, 325 Williams' Admr. Williams' Admr. V. 5 Ohio. 444, 177, 199 Wilmot, Bank of Toronto v. 19 Up. Can. Q. B. R. 73, 341 Wilsey, Rankin v. 17 Iowa, 463, 285 Wilson V. Bank of Orleans, 9 Ala. 847, 303 Wilson V. Bevans, 58 III. 232, 49, 53 Wilson, Blackwell v. 2 Richardson Law (So. Car.) 322, 428 Wilson, Bomar v. 1 Bailey Law (So. Car.) 461, 443 Wilson V. Brown, 2 Beasley, (N. J.) 277, 260 Wilson V. Burfoot, 2 Gratt. (Va.) 134, 447 Wilson ». CampeU, 1 Scam. (III.) 493, 82 Wilson, Coffman v. 2 Met. (Ky.) 542, 349 Wilson V. Coupland, 5 Barn. & Aid. 228, 52 Wilson V. Dawson, 52 Ind. 513, 376 Wilson, DonaUy v. 5 Leigh (Va.) 329, 291 Wilson V. Edwards, 6 Lansing (N. Y.) 134, 102 Wilson V. Foot, 11 Met. 285, 17, 20 Section Wilson, Freeholders of Warren v.. 1 Harrison, (N. J.) 110, 466 Wilson V. Glover, 3 Pa. St. 404, 476 Wilson, Gregg v. 50 Ind. 490, 82 Wilson V. Hart, 7 Taunt. 295, 76 Wilson, Kaufman v. 29 Ind. 504, 504 Wilson, Kemmerer v. 31 Pa. St. 110, 384 Wilson V. Langford, 5 Humph. (Tenn.) 320, 309 Wilson V. Lloyd, Law Rep. 16 Eq. Cas. 60, 23, 329 Wilson V. Marshall, 15 Irish Com. Law Rep. 466, 65 Wilson V. Martin, 74 Pa. St. 159, 74 Wilson, Payne v. 7 Barn. & Ores. 423, 9 Wilson, Pritchett v. 39 Pa. St. 421, 361 Wilson, Ross v. 7 Smedes & Mar. (Miss.) 753, 282 Wilson, Sloan v. 4 Harr. & Johns. 322, 68 Wilson V. StUwell, 9 Ohio St. 467, 82 Wilson V. Tebbetts, 29 Ark. 579, 509, 512 Wilson, Tyree v. Gratt. (Va.) 59, 458 Wilson V. Unselt, 12 Bush (Ky.) 215, - 499 Wilson, Wingate v. 53 Ind. 78, 325 Wilson V. Wheeler, 29 Vt. 484, 802 Wilson's Exr. Thompson v. 13 La. (Curry,) 138, 180 Wilson Sewing Machine Co. t>. Schnell, 20 Minn. 40, 66, 73 Willard v. Fralick, 31 Mich. 431, 515 Willey, City of Maquoketa t>. 85 Iowa, 323, 881 Willey V. Thompson, 9 Met. (Mass.) 329, 818 Wilmarth, Johnson v. 13 Met. (Mass.) 416, 173 Wiltmer v. EUison, 72 III. 301, 827 Winneshiek Co. v. Maynard, 44 Iowa, 15, 478 Windom, Lamberton v. 18 Minn. 506, 384 Wingate, Harlan v. 2 J. J. Marsh. (Ky.) 138, 209 TABLE OF OASES. clxiii Section Wingate v. Wilson, 53 Ind. 78, 325 ■Winstons, Bullitt's Exrs. v. 1 Miuif. (Va.) 269, 326 ■Winter, Smitli ». 4 Mees. & Wels. 454, 300 Winterrowd, Hamilton v. 43 Ind. 893, 305 "Winder v. Diffenderfer, 2 Bland's Ch. (Md.) 166, 260 Winliam v. Crutoher, 2 Tenn. Ch. R. (Cooper) 635, 82 Winslow Inhabitants of, Hudson K. eVroom, (N. J.)437, 32 Winston v. Fenwick, 4 Stew. & Port. KAla.) 269, 80 Winston v. Rives, 4 Stew. & Port. (Ala.) 269, 394 Winston v. Teargin, 50 Ala. 340, 378 Winstanley, Kastner v. 20 Up. Can. C. P. R. 101, 78, 162 Wintersoll v. Commonwealth, 1 Duvall (Ky.) 177, 433 Winckworth v. Mills, 2 Esp. 484, 46 Wing V. Terry. 5 HUl (N. Y.) 160, 156 Win, Stephens v. 2 Nott & McC. 372, 68 Winn, Dodd v. 27 Mo. 501, 383 Wise, Levy v. 15 La. An. 38, 11, 536 Wise, Parker v. 6 Maule & Sel. 289, 103 Wise V. Ray, 3 Greene (Iowa) 480, 75 Wise V. Shepherd, 13 111. 41, 276 Wise V. Wilcox, 1 Day (Conn.)' 22, 59 Wiseman, Fetrow v. 40 Ind. 148, 3, 892 Wisener, Polk v. 2 Humph. (Tenn.) 520, 502 Wiswall, Jarman v. 9 E. C. Green (N. J.) 267, 116 Withers, PuUiam v. 8 Dana (Ky.) 98, 8, 832 Withers, Samuel v. 16 Mo. 532, 363 Witherly v. Mann, 11 Johns. 518, 181 Withrow, Feamster v. 9 West Va. 296, 182 Witner, Hill v. 2 Philadelphia (Pa.) 72, 21 Section Wittmer v. Ellison, 72 111. 301, 309 Wittier, Stoops v. 1 Mo. Appl. Rep. 420, 524 Wodenhouse, Farebrother v. 23 Beavan, 18, 279 Wolbert, Commonwealth ». 6 Bin- ney (Pa.) 292, 474 Wolf V. Banning, 3 Minn. 202, 22 Wolf V. Finks, 1 Pa. St. 435, 299 Wolf, People V. 16 Cal. 385, 537 Wolf, Rudy V. 16 Serg. & Rawle, (Pa.) 79, 84, 85 Wolfe V. Brown, 5 Ohio St. 804, 173 Wolff V. Eoppel, 2 Denio, 368, 57 Wolff V. Koppel, 5 Hill, 458, 57 Woldridge v. Norris, Law Rep. 6 Eq. Cas. 410, 192 WoUeshlare v. Searles, 45 Pa. St. 45, 207 Wonterline, Burks v. 6 Bush (Ky.) 20, 363 Woodley, Gorrie v. 17 Irish Com. Law R. 221, 70, 75 Woodbury v. Bowman, 14 Me. 154, 190 Woodall, Pennington v. 17 Ala. 685, 188 Woodburn v. Carter, 50 Ind. 376, 305 Woodman v. Mooring, 8 Dev. Law (Nor. Car.) 237, 289 Woodman, United States v. 1 Utah, 265, • 344 WoodvUle, Ross v. 4 Munf. (Va.) 824, 859 Woodard, Sherrod v. 4 Devereux Law (Nor. Car.) 860, 259 Woodbridge, McGuire t'. 6 Robin- son (La.) 47, 312 Woodbridge v. Scott, 8 Brevard (So. Car.) 193, 191 Woodcock ». Oxford & Worcester R. R. Co. 1 Drewry, 521, 334 Woodcock, Shaw v. 7 Bam. & Ores. 73, 38 Woodgate, Devlin v. 84 Barb. (N. Y.) 252, 53 Woodson V. Johns, 3 Munf. (Va.) 230, 412 clxiv TABLE OF CASES. Section Woodson V. Moody, 4 Humpli. (Tenn.) 303, 173 Woodson, Overton v. 17 SIo. 453, 498 Woodstock Banks). Downer, 27 Vt. 539, 106, 170, 175 Woodworth v. Bowes, 6 Ind. (3 Port.) 276, 222 Woodward v. Clegge, 8 Ala. 317, 371 Woodward, Grafton Bank v. 5 New Hamp. 99, 309, 312 Woodward v. Moore, 13 Ohio St. 136, 526 Woodward, White v. 5 Com. B. 810. 9. 70 Woodwai-d v. Wilcox," 27 Ind. 207, 50 Wood, Allen v. 3 Ired. Eq. (Nor. • Car.) 386, 254 Wood V. Barstow, 10 Pick, 368, 82 Wood V. Beach, 7 Vt. 522, 72 Wood V. Benson, 2 Tyrwh. 93 38 Wood V. Benson, 2 Cronip. & Jer. 94, 9, 38 Wood, Binsse v. 37 New York, 526, 91 Wood V. Brett, 9 Grant's Ch. R. 452, 123 Wood, Claremont Bank v. 10 Vt. 582, 28 Wood V. Cook, 31 111. 271, 489 Wood V. Corcoran, 1 Allen (Mass.) 405, 48 Wood, Cross v. 30 Ind. 378, 309 Wood V. Dwarris, 11 Exch. 493, 352 Wood, Eberhardt v. 2 Tenn. Ch. R. (Cooper) 488, 240 Wood V. risk, 63 New York, 245,- 117 Wood, Justices o. 1 Kelly (Ga.) 84, 467 Wood V. Leland, 1 Met. (Mass.) 387, 259 Wood V. Newkirk, 15 Ohio St. 295, 307 Wood V. Perry, 9 Iowa, 479, 257 Wood V. Priestner, Law Rep. 2 Exch. 66, 78, 131 Wood V. Priestner, Law Rep. 2 Exch. 282, 131 Wood, Ralston v. 15 111. 159, 249, 532 Wood V. Washburn, 2 Pick. 24, 127 Wood V. Wheelock, 25 Barb. (N. Y.) 625, 53 Section Wood, Williams v. 16 Md. 220, 75 Wood V. Williams, 61 Mo. 63, 461 Woods, Hart v. 7 Blackf. (Ind.) 568, 76 Woods V. Justices, 1 Kelly (Ga.) 84, 492 Woods V. Sherman, 71 Pa. St. 100, 85 Woods, Williams v. 16 Md. 220, 76 Wood's Exrs. Hocker v. 33 Pa. St. 466, 124 Wooldridge, McGuire v. 6 Robin- son (La.) 47, 296 Woolfolk V. Plant, 46 Ga. 422,:202, 298 Woolfolk, Whitehead v. 3 La. An. 42, 525 Woolford V. Dow, 34 111. 424, 307 WooUey v. Jennings, 5 Bam. & Ores. 165, 134 WooUey, Van Volkenburgh, 16 Kansas, 20, 106 Woolworth V. Brinker, 11 Ohio St. 593, 314, 325 Woolf, Combe v. 8 Bing. 156, 296, 298 Woolf, Combe v. 1 Moore & Scott, 241, 296, 298 Wooster, Strong v. 6 Vt. 536, 370 Wooten, Buie, v. 7 Jones Law (Nor. Car.) 441, 424 Wootten, Odell v. 38 Ga. 224, 409 Word, Crawford v. 7 Ga. 445, 485, 531 Worel V. Morgan, 5 Sneed (Tenn.) 79, 384 Worneford v. Worneford, Strange, 764, 75 Wornell v. Williams, 19 Texas, 180, 391 WorraU v. Munn, 5 New York, 229, 75 Worster, Manufacturing Co. v. 45 New Hamp. 110, 526 Worthington, Watkinst). 2 Bland's Ch. R. (Md.) 509, 200 Wortendyke, Receiver of N. J. Midland R. R. Co. v. 27 New Jer. Eq. 658, 266 Worsham, Moore v. 5 Ala. 645, 293 Worthan v. Brewster, 30 Ga. 112, 308 Worcester Co. Institution v. Davis, 13 Gray, 531, 175 TABLE OF OASES. clxv Section Worcester Meoh. Sav. Bank v. Hill, 113 Mass. 25, 364 Worcester Bank v. Reed, 9 Mass, 267, 146 Worcester Savings Bank v. Hill, 113 Mass. 25, 8 Wotlen, Odell v. 4 Bankr. Reg. 183, 409 Wren v. Pearce, 4 Smedes & Mar. 91, 7, 68, 86 Wrenn, Cunningham v. 23 111. 64, 350 Wright's Admrj v. Stockton, 5 Leigh (Va.) 153, 512 Wright V. Austin, 56 Barb. (N. T.) 13, 292 Wright w. Bartlett, 43, New Hamp. 548, 305, 329 Wright, Brooks v. 13 Allen, 72, 304 Wright, Brown v. 7 T. B. Monroe (Ky.) 396, 201 Wright V. Dannah, 2 Camp. 203, 76 Wright, Dufau v. 25 Wend. 636, 90 Wright ». Dyer, 48 Mo. 525, 172 Wright V. Flinn, 33 Iowa, 159, 94 Wright V. Garlinghouse, 26 New York, 539, 166 Wright V. Grover & Baker S. M. Co. 82 Pa. St. 80, 269 Wright, Hardwiok v. 35 Beavan, 133, 375 Wright V. Harris, 31 Iowa, 272, 335, 481 Wright, Hill V. 23 Ark. 530, 180 Wright V. Johnson, 8 Wend. 512, 345 Wright V. Knepper, 1 Pa. St. 361, 379 .Wright, Lawson v. 1 Cox, 275, 254 Wright, Martin v. 6 Adol. & Ell. (N. S.) 917, 131 Wright, Mayor of Birmingham v. 16 Ad. & Ell. N. S. 623, 145 Wright, McComb v. 4 Johns. Ch. 659, 76 Wright, McWhorter v. 5 Ga. 555, 213 Wright, Mechanics' Bank 53 Mo. 153, 17 Wright V. Moriey, 11 Vesey 12, 280 Wright V. RusseU, 2 W. Black- stone, 934, 99 Wright V. Sewall, 9 Robinson, (La.) 128, 106 Section Wright V. Simpson, 6 Vesey, 714, 205 Wright, State v. 37 Iowa, 522, 436 Wright V. Stoers, 6 Bosw. (N. T.) 600, 299 Wright, United States v. 1 Mc- Lean, 509, 460 Wright, Tan Derveer v. 6 Barb. (N. T.) 547, 80, 119 Wright V. Wakeford, 17 Vesey, 454, 75 Wright V. Watt, 52 Miss. 634, 378 Wright, Way v. 5 Met. (Mass.) 380, 431 Wright, Williams v. 9 Humph. (Tenn.) 493, 325 Wright, Wile v. 32 Iowa, 451, 216 Wuff V. Jay, Law Rep. 7 Queen's B. 756, 386, 389 Wyatt, Crosby v. 23 Me. 156, 226, 259, 305 Wyatt, Crosby v. 10 New Hamp. 318, 259, 299, 305 Wybrants v. Lutch, 24 Texas, 309, 322 Wyohe v. Myrick, 14 Ga. 584, 521 Wyke V. Rogers, 1 De Gex, Macn. &Gor.408, 318,329 Wylie, Brevard v. 1 Richardson's Law (So. Car.) 38, 526 WyUe V. Gallagher, 46 Pa. St. 205, 446 Wyman v. Gray, 7 Harris & Johns. (Md.) 409, 54 Wyman, Larson v. 14 Wend. 246, 62,64 Wymond,Tate v. 7 Blackf. (Ind.) 240, 327 Wynn v. Brooke, 5 Rawle (Pa.) 106, 187 Wynn, Green v. Law Rep. 4 Ch. Appl. Cas. 204, 123 Wynn, Green v. Law Rep. 7 Eq. Cas. 28, 123 Wythes v. Labouchere, 3 De Gex & Jones, 593, 19, 365 Tale V. Dederer, 18 N. T. 265, 4 Tale V. Edgerton, 14 Minn. 194, 9 Tale V. Wheelock, 109 Mass. 502, 128 Tancey v. Brown, 3 Sneed (Tenn.) 89, 167 clxvi TABLE OF OASES. Section Yantis, Letcher's Admr. v. 3 Dana (Ky.) 160, 512 Tarborough, Rainey v. 2 Ired. Eq. (Nor. Car.) 249, 254 Tarborough, Perry v. 3 Jones' Eq. (Nor. Car.) 66, 195 Yates, Bartley v. 2 Hen. & Mun. (Va.) 398, 15 Yates V. Donaldson, 5 Md. 389, 17 Yates, Greenfield v. 2 Eawle (Pa.) 158, 101 Yates. Kincaid »; 63 Mo. 45, 333 Yates V. Plaxton, 3 Levinz, 235, 435 Yazoo City, Mann v. 31 Miss. 574, 622 Yeary v. Smith, 45 Texas, 56, 296 Yearborough's Admr. Pickens v. 26 Ala. 417, 384 Yeargain, Jones v. 1 Dev. Law (Nor. Car. 420, 16 Yeargin, Winston v. 50 Ala. 340, 378 Yerby v. Giigsby, 9 Leigh (Va.) 387, 75, 76 Yeomans, M'Doal v. 8 Watts, (Pa.) 361, 83 Yingling, Treauer v. 37 Md. 491, 386 Yongue v. Linton, 6 Rich. Law (So. Car.) 275, 219 York Co. M. P. Ins. Co. v. Brooks, 51 Me. 506, 355, 358 York V. Landis, 65 Nor. Car. 585, 195 Young, City Bank v. 43 New Hamp. 457, 386 Young V. Clark, 2 Ala. 264, 252 Young, Dole v. 24 Pick. 250, 175 Young, Green v. 8 Greenl. (Me.) 14, 113 Young, Harris v. 40 Ga. 65, 9 Young, Hasleham v. 5 Ad. & Ell. (N. S.) 833, 10 SxcnoN Young, Helm's Admr. ». 9 B. Mon. (Ky.) 394, 283 Young, Kuns' Exr. v. 34 Pa. St. 60, 128 Young V. Lyons, 8 (Md.) Gill 162, 252, 255, 256 Young, Oxley v. 2 H. Blackstone, 613, 212 Young V. Pickens, 45 Miss. 553, 419 Young, Sasscer v. 6 GUI. & Johns. (Md.) 243, 380 Young, Seavers. 16 Vt. 658, 213 Young, State v. 23 Minn. 551, 14, 463, 478 Young V. State, 7 Gill. & Johns. (Md.) 253, 442 Young, Thompson v. 2 Ohio, 335, 143 Young, T'wopenny v. 3 Barn. & Cress. 208, 320 Young, Waldron v. 9 Heisk. (Tenn.) 777, 333 Zacharie's Succession, Reynes v. 10 La. (Curry) 127, 320 Zachery, Samuel v. 4 Ired. Law (Nor. Car.) 377, 252 Zane v. Kennedy, 73 Pa. St. 182, 296 Zeilsdorfif, Ketchum v. 26 Wis. 514, 420 Zent's Exrs. v. Heart, 8 Pa. St. 337, 120 Zimmerman, Judah v. 22 Ind. 388, 347 Zimmerman v. Judah, 13 Ind. 286, 347 Zink, Johnson v. 51 New York, 333, 24 Zollar V. Jarvein, 49 New Hamp. 114, 409 THE LAW OF SURETYSHIP AND GUARANTY. CHAPTER I. OF THE CONTRACT. Section. What is a surety or guarantor ; difference between them . . 1 Origin and requisites of the con- tract 2 When guaranty by infant, rail- road company and bank valid, and by city void ... 3 When married -woman may be- come surety by virtue of stat- ute. When statute says party shall not be received as surety, he is nevertheless bound if he is received as such ... 4 When duress a defense to surety or guarantor .... 5 There must be a consideration to support the contract; instances 6 Executory consideration to princi- pal alone sufficient ... 7 Agreement by creditor to forbear towards principal sufficient . 8 Executed consideration to princi- pal not sufficient; damage to creditor sufficient ... 9 How far partner can bind firm or agent can bind principal as surety or guarantor . . .10 Where act of principal is pro- hibited by law or is fraudulent, surety not bound . .11 Voluntary bond not required by 14 Section, law or different from bond re- quired valid . . . .12 Voluntary bond binds surety . 13 Obligation of surety must be de- livered and takes effect from time of delivery Surety bound when his name not mentioned in body of instru- ment; not bound when penalty of bond blank .... When party liable on implied guaranty 16 Joint maker of note may be shown by parol to be surety Joint maker of sealed instrument may be shown by parol to be surety If creditor knew of suretyship when he did the act complained of, this is sufficient to secure surety his rights Surety must show that creditor knew of suretyship; what is sufficient evidence of the fact . Property pledged by one for the debt of another occupies posi- tion of surety .... Property of wife pledged for debt of husband, occupies position of surety When retiring member of firm 15 17 18 19 20 21 22 2 THE CONTEACT. Section, becomes surety of other part- ners for firm debts . Vendor of land, who sells it sub- ject to mortgage, is surety for mortgage debt Joint obligors are sureties for each other; when sole maker of note or bond is surety, etc. Stockholders of a corporation liable for its debts are not its sureties; when surety becomes principal, etc Surety entitled to same rights after judgment against him as before Surety who in terms binds him- self as principal, not entitled to rights of surety 23 24 25 26 27 Section. Surety estopped to deny recitals of his obligation . . 29-30 Surety estopped to deny recitals of his obligation; reason why; when not estopped . . 31 When surety not estopped by reci- tals of obligation signed by him 32 Cases holding guaranty of note negotiable . . . .33 Cases holding that guaranty of debt passes to assignee of debt 34 Cases holding guaranty of note not negotiable . . . .35 Cases holding guaranty of bond not negotiable; when guaranty on Ijack of note transfers title to note; obligation of surety cannot be sold alone . . 36 § 1. 'What is a surety or guarantor — Difference between them. — A surety or guarantor, is one who becomes responsible for the debt, defa,ult or miscarriage of another person.^ The words surety and guarantor are often used indiscriminately as synony- mous terms ; but while a surety and a guarantor have this in com- mon, that they are both bound for another person, yet there are points of difference between them which . should be carefully noted. A surety is usually bound with his principal by the same instrument, executed at the same time and on the same consider- ation. He is an original promisor and debtor from the begin- ning, and is held ordinarily to know every default of his principal. Usually he will not be protected, either by the mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby. "On the other hand, the contract of the guarantor is his own sepa- rate undertaking, in which the prrincipal does not join. It is usually entered into before or after that of the principal, and is often founded on a separate consideration from that supporting the contract of the principal. The original contract of the prin- 'In Jones v. Whitehead, 4 Ga. 397, Lumpkin J. said: "Suretyship has been defined to be a lame substi- tute for a thorough knowledge of hu- man nature." Foracarefnl and ex- cellent statement of what' a surety is, see Smith v. Shelden, 35 Mich; 42, per Cooley, C. J. OEIGIN AND EEQUISITES. 3 cipal is not his contract, and he is not bound to take notice of its non-performance. He is often discharged by the mere indulgence of the creditor to the principal, and is usually not liable unless ndtitied of the default of the principal.' " The rules of the com- mon law as to sureties are not strictly applied to guarantors, but rather the rules of the law merchant, and the true distinction seems to be this: That a surety is in the first instance answer- able for the debt for which he makes himself responsible, and his contracts are often specialties, while a guarantor is only liable when default is made by the party whose undertaking is guarantied, and his agreement is one of simple contract." ^ The principal 1 and surety being directly and equally bound, maybe sued jointly' in the same suit, while the guarantor being bound by a separate! contract and only collaterally liable, cannot usually be joined in ^ the same suit with the principal.^ § 2. Origin and requisites of the contract. — The party to whom the surety or guarantor becomes bound is called the creditor or obligee. The party for whom he becomes bound is called the principal or principal debtor. The surety or guarantor becomes such by means of contract. Some of the earliest contracts men- tioned in history were those of suretyship, and the origin of the contract is shrouded in the mists of antiquity. Some at least of the incidents of suretyship were well understood in the remotest times. In the Bible it is written, " He that is surety for a stranger shall smart for it, and he that hateth suretyship is sure." * To constitute the contract of suretyship or guaranty, the same things are necessary as to constitute any other contract, viz.: That the parties be competent to contract; that they actually do contract, and that the contract if not under seal be supported by ^ McMillan v. Bull's Head Bank, 32 in that respect from the contract of a Ind. 11; Reigart v. White, 52 Pa. St. surety which is direct; and in general 438; Gaff V. Sims, 45 Ind. 262; the guarantor contracts to pay if by Eramph's Bx'x. ij. Hatz's Exrs., 52 the use of due dihgence the debt can- Pa. St. 525; Allen v. Hubert, 49 not be made out of the pimcipal debtor, Pa. St. 259; Harris v. Newell, 42 Wis." while the surety undertakes directly 687. for the payment, and so is responsible ' Hubbard, J., in Curtis v. Dennis, at once if the principal debtor makes 7 Metcalf. 510; in Keames v. Mont- default." gomery, 4 West Va. 29, Maxwell, J., 'Read v. Cutts, 7 Greenleaf, 186. said: " The contract of a guarantor * Proverbs xi, 15. is collateral and secondary. It differs i THE CONTKACT. a sufficient consideration. Any one competent to contract gen- erally may enter into the contract of suretyship or guaranty. S 3. When guaranty by infant, railroad company and bank valid, and by city void. — The contract of suretyship or guaranty made by an infant is not void, but may be ratified by him upoij arriving at majority. But in order to charge one virho was an in- fant when he made such a contract, it is necessary to show that sub- sequent to the time he became of age he had full knowledge that he was not bound, and afterwards distinctly ratified the contract.' Where, under the laws of Iowa, a railroad company had power to issue its own bonds to pay for the construction of its road, it was hel'd it might guaranty the bonds of cities and counties which had been lawfully issued and were the means of accom- plishing the same end." A bank may guaranty the payment of bonds pledged by its debtor to a third person as collateral secu- rity for money with which the debtor pays the bank, even though the bonds have never been assigned to the bank." In the last two cases the guarantor accomplished a legitimate object by, means of its guaranty and did not assume any more onerous obligation than if it had issued its own bonds in the one case or guarantied bonds assigned to it in the other. But where the municipal government of JSTew Orleans guarantied certain notes of a corporation whose purpose it was to open up navigation through a portion of the city, it was held the guaranty was void, because the city had no authority to make it, altliough the city might lawfully have opened up the navigation. The court said: "It can hardly be maintained as a legal proposition that for every act for which an agent may expend money for his princi- pal he can bind his principal in a contract of suretyship. * The open and direct appropriation and expenditure of money by officers of a municipal corporation has nothing iii it in common with the contingent and long enduring contract of suretyship."* ' Owen V. Long, 112 Mass. 403; possession of the guarantor, and it Hinely v. Margaritz, 3 Pa. St. 428; transferred them for value. Held, it Fetrow v. Wiseman, 40 Ind. 148. was estopped to deny its liability upon " Railroad Company v. Howard, 7 the guaranty of the coupons. Wallace, 892. In Amot v. Erie R. R. ' Talman v. Rochester City Bank, Co., 5 Hun, 608, one railroad company 18 Barbour, 123. guarantied the interest coupons on * Louisiana State Bank v. Orleans certain bonds of another railroad com- Navigation Company, 8 La. An. 294, pany. The bonds afterwards came into per Eustis, C. J MAEEIED WOMAN. 5 8 i. When married 'woman may become surety by virtue of statute. — When statute says party shall not be received as surety, be is nevertheless bound if he is received as such. — A married woman cannot, unless enabled by statute, become surety for her husband or a stranger.' She cannot bind herself nor her separate property either at law or in equity by such a contract. The con- tract is absolutely void at law, and equity will not charge her separate estate where she has received no benefit." In many States, by statute, a married woman may hold, manage and eon- tract with reference to her separate property the same as if she was unmarried. She cannot, however, by virtxie of such a statute become a surety. The intention was, by such statutes, to remove ter disabilities for her interest, and not to enable her to contract onerous obligations from which she derived no benefit.^ But where a statute provided that a married woman might contract the same as a feme sole, it was held that she might lawfully mortgage her homestead for an existing debt of her son.* So where a statute provided that the " contract of any married woman made for any lawful piirpose * (should) be valid and binding and * (might) be enforced in the same manner as if she were sole," it was held that a married woman might become a surety, the contract of suretyship being a lawful contract, and in that case, for a lawful purpose.^ A statute providing that attorneys shall not be received as bail, in a criminal case, is constitutional,^ ' Firemen's Ins. Co. v. Cross, 4 Rob- In De Vries v. Conklin, 22 Mich. 255, inson (La.) 508; Gosman v. Cruger, 7 the court in speaking of the married Hun, 60. woman's statute said: " The disabili- ' Yale V, Dederer, 18 New York, ties are remoYed only so far as they 265; Perkins v. Elliott, 8 C. E. Green operated unjustly and oppressively; (N. J.) 526. beyond that they are suffered to re- ^ Athol Machine Co. v. Fuller, 107 main. Having been removed with Mass. 437; in West v. Laraway, 28 the beneficent design to protect the Mich. 464, where a married woman wife in the enjoyment and disposal of had signed a note with her husband her property for the benefit of herself as his surety, it was contended that and her family, the statute cannot be although she was not personally bound, extended by construction to cases not the note operated as a charge on her embraced by its language nor within separate estate. But the court held its design." otherwise, and said that if such were * Low v. Anderson, 41 Iowa 476. the case she would be in a worse ^Mayo v. Hutchinson, 57 Maine, position than a man or a feme sole, 546. because a note by either of them ^ Johnson v. Commonwealth, 2 Du- would not be a lien on their property. vail (Ky.) 410. 6 THE CONTRACT. but sucli a statute is only directory, and if an attorney signs a bail bond and is received as bail he is bound notwithstanding the prohibition of the statute.* Where a statute provided that bail should be a resident of the State, a non-resident who was accepted as bail was held bound.^ A statute provided that ad- ministrators should take notes with two sureties for certain debts due estates. A note in such case was taken with only one surety, and he was held liable, it not appearing that any fraud or impo- sition had been practiced upon him.^ § 5. 'When duress a defense to surety or guarantor. — If the surety or guarantor acts under duress in entering into the con- tract, he will not be bound.* And this for the same reason that a person sought to be charged on a contract of any other kind would not be bound, viz., because he never consented to it. But when the duress is exercised on the principal alone, a differ- ent question arises. It has been held that the duress of the principal, who is a stranger to the surety, will be no defense to the surety.' It has also been held, and it seems with the better reason, that the duress of the principal alone is a complete defense to the surety.^ Where a statutory bond for the liberties of a prison was executed by the principal under duress, if the principal with the knowledge and consent of the surety claims and exercises the right of being on the liberties by virtue of such bond, they are both estopped to" allege its invalidity.' Where a creditor caused the arrest of a debtor and under a threat of sending him to state's prison forced him to sign a note, and his wife, who was then in a delicate condition, was induced by the same ^Sherman v. The State, 4 Kansas, * Small v. Currie, 2 Drewry, 102. 570; Jack V. The People, 19 111. 57; ^-^ayne v. Sands, Freeman, 351; Holandsworth v. Commonwealtli, 11 Simmons v. Barefoots' Exrs. 2 Hay- Bush, 617.' In the case last cited the wood, (Nor. Car.) 606; Thompson v. court said: " If those of the exempted Buckhannon, 2 J. J. Marah. 416. or priviliged classes persist in tendering * Hawes «. Marchant, 1 Curtis, 136; themselves as bail, and by becoming Owens v. Mynatt, 1 HeiskeU (Term.) such procure the discharge of persons 675. The reason given in the last case accused of crime, they will not be heard is that if it were otherwise, the surety to say that they are not bound because being compelled to pay, could recover they violated the law." from his principal and thus the princi- ' Commonwealth v. Ramsay, 2 Du- pal be deprived of his defense. See, vail (Ky.) 386. also, Putnam v. Schuyler, 4 Hun, 166. ' Reynolds v. Dechaums, 24 Texas, ' Hawes v. Marchant, 1 Curtis, 136. 174. CONSIDEKATION NECESSAET. 7 threats to indorse the note, it was held she might avail herself of the duress.* A State treasurer gave bond with sureties as re- quired by law, and afterwards held over under a constitutional provision, no successor being apppinted. While holding over, he was " required and demanded " by the legislature to give a new bond in a much larger amount and gave such bond with sure- ties. The sureties on the last bond claimed to be discharged on account of duress of their principal, but it was held there was no duress and that they were bound.'' § 6. There must be a consideration to support the contract — Instances. — As already stated, the contract of suretyship or guaranty when not under seal, must, in order to render it valid, be supported by a sufficient consideration.* A consideration of one dollar is sufficient to support a- contract of suretyship or guaranty for any amount, for the law cannot take account of the prudence or imprudence of the bargain the surety or guar- antor has made.* But "there must be some consideration, usually either of benefit to the principal or surety, or detriment to the creditor, to support the contract. Leaving a claim in the hands of an attorney to control and collect, is a sufficient consideration for a contemporaneous guaranty of the claim by him.' The liability of a surety on a note is a sufficient consideration for his subsequent written guaranty of its payment, whether at the date of the guaranty the right of action on the note is or is not barred by the statute of limitations.* A married woman without consideration became surety on the note of her husband. After the death of the husband she gave a new note for the ' IngersoU w. Boe, 65 Barb. (N. T.) 280; Leonard D.Vredenburgh, 8 Johns. 346. InThompson».Buckhannon,2J. 29; Cobb v. Page, 17 Pa. St. 469; J. Marsb. 416, Robertson J. said: "If French v. French, 2 Man. & Gr. 644; an officer colore officii exacts a bond Aldridge v. Turner, 1 Gill & Johns, to himself -which he has no authority (Md.) 427; Tenney u. Prince, 4 Pick, to require, the security may avoid it as 885; Clark v. Small, 6 Yerg. (Tenn.) well as the principal, because being 418. not only unauthorized but positively * Lawrence v. McCalmont, 2 Howard prohibited, it is totally void." (TJ. S.) 426; Jackson's Adm'r. v. Jack- " Sooy ads. State, 38 New Jer. Law son, 7 Ala. 791. / » v U. r. / rf 324. 6 Gregory v. Gleed, 33 Vermont, 405. 'Pfeiffer v. Eingsland, 25 Mo. 66; «Miles v. Linnell, 97 Mass. 298; see Barren v. TrusseU, 4 Taunt. 117-20; on same subject, Buckner v. Clark's Saunders v. Wakefield, 4 Barn. & Exr., 6 Bush, 168. Aid. 595; Bailey v. Freeman, 4 Johns. 8 THE OONTEAOT. amount of tlie former note and another note signed by lier hus- band alone. Afterwards she gave another note and a mortgage to secure it, the only consideration for the last note being the note signed by her after her husband's death. It was held that all the papers executed by her were void for want ' of consid- eration.' One B, the assignee of a lease, assigned the lease to W, taking from W and from E, his surety, an agreement to pay the rent. Held, this agreement was void for want of consideration. B was liable for rent only so long as he held as assignee of the lease, and W by accepting the assignment of the lease became liable for rent to the owner of the premises and not to B.'' § 7. Executory consideration to principal alone sufficient. — It' is not necessary to the validity of the consideration that any portion of it should move from the creditor to the surety or guar- antor, provided the circumstances are such that a previous re- quest on the part of the surety or guarantor is held to exist. A consideration moving to the principal "alone contemporaneous with or subsequent to the promise of the surety or guarantor is sufficient.^ If after the original consideration has moved be- tween the creditor and principal, the surety or guarantor signs upon a new consideration, moving from the creditor to the princi- pal, this is sufficient.* When a guaranty on a note is without date, a jury may infer without further proof that it was made at the same time and on the same consideration as the note.^ Where a promise that a surety or guarantor will become liable is part of the inducement on which the creditor acts in creating the origi- nal debt, this is a sufficient consideration to support the contract of the surety or guarantor who subsequently signs. A told B that if C would lend B money, he. A, would be surety for it. B communicated this to 0, and on the strength of it loaned B money and took his note for it, due in one year. Three days 'Hetherington v. Hkon 46 Ala., 29; Morley u. BootMy, 10 Moore, 395; r97. Bicksford v. Gribbs, 8 Gush. 154; Mc- ' Stoppani v. Richard, 1 Hilton (N. Naught v. McClaughry, 42 New York, Y.) 509. 22. » Wren v. Pearce, 4 Smedeis & Marsh. * Gay v. Mott, 43 Ga. 252. (Miss.) 91; Freeman v. Freeman, 2 ^Bickford v. Gibbs, 8 Gush. 154; Bulst. 269; Bailey v. Croft, 4 Taunt. Underwood «. Hossack, 88 111. 208. 611; Henderson o.Eioe, 1 Gold. (Tenn.) On the same subject, see Snevily v. 2-23; Robertson v. Findley, 31 Mo. Johnston, 1 Watts & Serg. 307. 384; Leonard v. Vredenburgh, 8 Johns. SUFFICIENCY OF CONSIDBEATION. 9 after the note became due A signed it, and he was held bound.^ A principal executed and delivered a note to a creditor which specified no time of payment, and at the same time agreed that he would procure B to sign as surety if at any time the creditor should deem himself insecure. Afterwards the creditor returned the note to the principal, with the request that he should get B to sign, which he did, and B was held liable." The same principle was applied in a case where A sold B goods on the promise by B that would guaranty the payment, and guar- antied the payment of the note given by B for the price of the goods about three hours after the note was given.' So a guaranty is binding when goods are contracted for one day by the principal, and the guaranty is executed the next day and delivered to the seller before the goods are delivered by him, because the sale was not complete till the goods were delivered.^ A principal signed an undertaking, and at that time it was agreed between the princi- pal and creditor that certain other parties should sign it as sure- ties. The writing was delivered by the principal to the creditor when it was signed, and the creditor afterwards and at another time presented it to the sureties, who signed it, and it was held they were bound.* § 8. Agreement by creditor to forbear towards principal sufB- oient. — An agreement on the part of the creditor to extend the ' Paul V. Stackhouse, S8 Pa. St. 302. sustain the promise of the surety. The same principle was held in the But if the obligation of the principal case of ai,sale of goods by C to B un- debtor be founded upon a good con- der similar circumstances, Standley sideration, and at the time it is incurred V. Miles, 36 Miss. 434. or before that time the promise of the ^ McN aught V. McClaughry, 42 New surety is made and enters into the York, 22. inducement for giving the credit, then iWheclwright v. Moore, 2 Hall (N. the consideration for which the princi- Y.) 162. With reference to what is pal debt is created is considered as a sufficient consideration for guaranty of valid consideration also for the under- promissory note by payee, who also in- taking of the surety. * Although dorses it, see Gillighan i;. Boardman, the signatures of the principal obligors 29 Me. 79. were procured at one time and those * Simmons v. Keating, 2 Staikie, 375. of the sureties afterwards, nevertheless ^Williams i/. Perkins, 21 Ark. 18. in contemplation of law their promises Compton, J. said: "If the debt or were contemporaneous, and formed a obligation of the principal debtor is part of one and the same general tran- already incurred previous to the imder- saction, and the same consideration taking of the surety, then there must which supports the promise of the one be a new and distinct consideration to also supports that of the other." 10 THE CONTEAOT. time of payment to the principal for a definite time, is a sufiicieut consideration for the contract of suretyship or guaranty, the one agreement being a consideration for the other, and the delay usually operating both as a benefit to the principal and a detriment' to the creditor.^ An agreement for forbearance for one year,^ for a convenient time,^ on an over-due note, for four years,* for a consid- erable time,' or for a reasonable time,° are any of them a sufficient consideration. An agreement on the part of the creditor for gen- eral indulgence toward the principal, without any definite time being specified, with proof of actual forbearance for a reasonable time is sufficient.' An agreement for delay in consideration of further forbearance, means forbearance for a convenient or reason- I able time.* But in order that forbearance by the creditor towards the principal maybe a sufficient consideration, there must be an agreement on the part of the creditor that he will forbear. Mere forbearance or omjssion on the part of the creditor to exercise his legal right without any agreement to that effect, is not sufficient, because he may at any moment, and at his own pleasure, pro- ceed. There must be promise for promise.' An agreement to withdraw, and the withdrawal of a suit or other proceeding against a principal is also a sufficient consideration.'" § 9. Executed consideration to principal not sufficient — Carn- age to Creditor sufficient. — Where the consideration between the principal and creditor has passed and become executed before the 'Fuller V. Scott, 8 Kansas, 25; Tin- 'Shupe v. Galbraith, 32 Pa. St. 10; derwood v. Hossack, 38 lU. 208; Pul- Walker v. Sherman, 11 Met? (Mass.) Mam ». Withers, 8 Dana (Ky.), 98. 170; Mecorney ». Stanley, 8 Cush. ^ Sage V. Wilcox, 6 Conn. 81. (Mass.) 85; Breed v. Hillhouse, 7 Conn. « Sadler v. Hawkes, 1 RoU. Abr., 27, 523; Crofts v. Beale, 11 Com. B. 172; pi. 49; Tricket v. Mandlee, Sid. 45. Sage o. Wilcox, 6 Conn. 81. It was 'Breed v- Hillhouse, 7 Conn. 523. held in some old cases which have ribt ' Mapes V. Sidney, Cro. Jac. 683. been generally followed in later times, 'Johnson v. Whitohcott, 1 Roll, that an agreement to forbear for an Abr., 24 pi., 33; Lonsdale v. Brown, 4 indefinite period, Phillips -o. Shack- Wash., 148. ford, Cro. Eliz. 455, or for a short, ' Thomas v. Croft, 2 Richardson Law Tolhursfc v. Brickinden, Cro. Jac. 250, (So. Car.) 113; Elting v. Vanderlyn, or some, Tricket v. Mandlee, Sid. 45) 4 Johns. 237; Oldershaw v. King, 2 or a little time, 1 Roll. Abr. 23, would Hurl. &Nor. 520; Rowlett v. Ewbank, not be a sufficient consideration. 1 Bush (Ky.) 477. lo Worcester Savings Bank v. Hill, 8 Caldwell V. Heitshur, 9 Watts & ,113 Mass. 25; Harris v. Venables.Law Serg. 51; Oldershaw v. King, 2 Hurl. Rep. 7 Exch. 235. & Nor. 520. SUFFICIENCY OF OONSIDEEATION. 11 contract of the surety or guarantor is made, and such contract was no part of the inducement to the creation of the original debt, such consideration is not suflScient to sustain such contract.^ One person entered into a contract with another by which he was to receive such other's promissory note without surety and the note was made and received. Afterwards the payee requested the maker to get a surety, and the maker took the note and had it subscribed by a third person, and returned it to the payee. There was no new consideration, and it was held the surety was not bound." But where a bond was executed by the obligors and the obligee refused to receive it unless it was guarantied, and A thereupon guarantied it without any request from the obligors, and the obligee thereupon accepted the bond, it was held that the acceptance of the bond was a suiBcient consideration for the guaranty.^ A party sold a horse to another, being misled by false statements and representations of the purchaser, and took a note for the price. Discovering the fraud, the seller was about to rescind the contract and reclaim the horse. Upon being in- formed of these facts two days after the note was made, a surety put his name to the note and in consequence the property was not reclaimed. It was held that not reclaiming the horse was a good consideration for the agreement of the surety.* A guaranty 'Tomlinson v. GeU, 6 Ad. & Ell. 564; 64 Pa. St. 406; Davis v. Banks, 45 Ga. Yale i). Edgerton, 14 Minn. 194; Wil- 138; Badger v. Barnabee, 17 New Earns V. Marshall, 42 Ba.b. 524; Hamp. 120; Brown v. Brown, 47 Mo. Thomas «. Williams, 10 Barn. & Ores. 130; Ware v. Adams, 24 Me. 177; 664; Pratt v. Hedden, 121 Mass. 116; Clompton's Exrs. v. HaU, 51 Miss. 482. Famsworth v. Clark, 44 Barb. 601; ^Jackson v. Jackson, 7 Ala. 791. Eastwood V. Kenyon, 11 Ad. & EU. The court, CoUier, 0. J., among other 438; Ludwiok v. Watson, 3 Oreg. 256; things, said: " Any act in the nature Parker «. Bradley, 2 Hill, 584; Hunt of a benefit to the person who promises, t). Bate, Dyer 272 (a); Stewart w.Hinkle, or to any other person upon his re- 1 Bond, 506; Leonard v. Vredenburgh, quest, or any act which is a trouble or 8 Johns. 29; French v. French, 2 Man. detriment to him to whom the promise & Gr. 644; McCreary ». VanHook, 35 is made, is sufficient, and the amount of Tex. 631; Wood v. Benson, 2 Cr. & benefit or of trouble or detriment or Jer. 94; 1 Roll. Abr. 27 pi. 49; Ashton its comparative value in relation to V. Bayard, 71 Pa. St. 139; Payne v. the promise is indifferent." See, also, Wilson, 7 Bam. & Ores. 423; Ellen- Thomert;. Field, 1 Bulstr. 120; Hunt wood V. Fults, 63 Barb. 321; Besshears v. Bate, 3 Dyer, 272 (a). «. Rowe, 46 Mo. 501; Lossee f. Wil- 'Gardner -o. King, 2 Ired. Law liams, 6 Lans. 228; Harris v. Young, (Nor. Car.) 297. 40 6a. 65; Sawyer v. Femald, 59 Me. ■'Harwood v. Kiersted, 20 111. 367. 500; Uhler s.Farmers' National Bank, 12 THE CONTEACT. of past and future advances made and to be made to a third per- son, is good for the whole and the cousideration sufficient.* But there must be an agreement on the part of the creditor to make the future advances, or he must actually make them, or there will be no consideration for the agreement to pay for the past ad- vances and it will be void." It is not necessary that the consid- eration should consist of a benefit to the principal or surety. Any trouble, detriment or inconvenience to the creditor is suf- ficient.^ "When the consideration moves directly between the surety or guarantor and the creditor, the same rules apply which prevail with reference to the consideration for any other con- tract.* § 10. How far partner can bind firm or agent can bind princi- pal, as surety or guarantor. — One partner cannot usually bind the firm as sureties or guarantors for another.' The reason is, that the business of a partnership is not commonly that of making contracts as sureties or guarantors; and the partner who makes such a contract, acts outside the scope of his implied authority as agent of the firm. One member of a firm of attorneys has no right, in consideration of the discharge of their client from cus- tody, to bind the firm to pay the debt of such client, and the costs of suit.^ So where certain partners were railroad contractors, and ^Hargroves v. Cook, 15 Ga. 821 WMte V. Woodward, 5 Com. B. 810 Chapman v. Sutton, 2 Com. B. 634 ^ McQuewans v. Hamlin, 35 Pa. St. 517; Sutton V. Irwine, 12 Serg. & Eawle, 13; Rolston v. Chick, 1 Stew. Bussell D. Moseley, 3 Bro. & Bing. (Ala.) 526; Sweeteerj). French, 2 Cush. 211. To the same effect with refer- 309; Mayberry v. Bainton, 2 Harring- ence to attorneys' fees, see Roberts v. ton (Del.) 24; Duncan v. Lowndes, 3 Griswold, 35 Vt. 496; also with refer- Camp. 47^; Crawford ». Stirling, 4 enoe to rent, see Vinal v. Richardson, Esp. 207. 13 Allen, 521. To same effect as above, ^ Hasleham «. Young, 5 Ad. & Ell. see Boyd ». Moyle, 2 Man. Gr. & S. (N. S.) 833; Id. Dav. & Mer. 700. In 644; contra. Wood v. Benson, 2 Mauldin v. Branch Bank at Mobile, 2 Cromp. & Jer. 94. Ala. 602, the court said, if an unau- "Westhead v. Sproson, 6 Hurl. & thorized indorsement by one member Nor. 728; Morrell v. Cowan, Law of a firm was on commercial paper, an Rep., 6 Eq. Div. 166; Boyd v. Moyle, innocent indorsee might recover 2Com. B. 644. against the firm. In Puller o. Scott, 8 » Wells V. Mann, 45 New York, 327 Colgin ». Henley, 6 Leigh (Va.) 85 Morley v. Boothly, 10 Moore, 395 Kansas, 25, when it was proved that a . firm indorsed a note in blank in the firm name, the court said: " It would Pillans V. Van Mierop, 3 Burr. 1663. then be presumed that such indorse- * Leonard v. Vredenburgh, 8 Johns. ment was made in the firm business. " 29; Smith v. Pinch, 2 Scam. (lU.) 321. GTIAEANTY BY PAETNEE. 13 sub-let a poi'tion of their work to A, and it was necessary for A to have brick to carry on the work, and he could not get them with- out coal, and one of the partners, without the knowledge of the oth- ers, gave a guaranty in the firm name for coal bought by A for that purpose, it was held the guaranty did not bind the partnership.^ Where, however, the partner who attempts to bind the firm has special authority for that purpose from the other members, he may bind the firm the same as any other agent having authority. So where the making of such a contract is within the usual scope of the business of the firm, it may be bound by the act of one partner in that regard. When the contract is made by a partner without authority, if the other members of the firm afterwards adopt it and act on it the firm will be bound.^ A firm sold a steamboat to A, and he gave a note for the purchase money to B, who was a creditor of the firm, in payment of the firm debt, and one of the firm signed the 'name of the firm to the note as sure- ties. It was held that the firm was bound, because it was in fact their own debt and not the debt of another that the note paid, and the substance and not the form of the transaction should be looked to.' One firm may become the surety of another firm, the same as one individual may become the surety of another.* A party authorized to sign another's name as surety, must pursue his authority strictly in order to bind the principal. Thus where a party was authorized to sign the name of A as surety to a note and he signed the name of A to the note as a principal, it was held A was not bound.' One who is acting as agent of another, and as such, -^v-riting letters in his name, collecting money and giv- ing receipts for the same in his name, indorsing bank checks, etc., has no power without special authority to bind his principal by the guaranty of the debt of a third person.' So an agent having a general power of attorney to transact business for his principal and sign his name to bonds, notes, etc., in connection with the business of the principal, cannot by virtue of such 'Brettelv. Williams, 4 Wels. Hurl. 'Langan «. Hewett, 13 Smedes & & G. 623. Marsh. 122. = Crawford v. Stirling, 4 Esp. 207; *Allen ». Morgan, 5 Humph. (Tenn.) Ex parte Gardom, 15 Vesey, 286. See, 624. also, on same subject, Sandilands ■». ^ Bryan v. Berry, 6 Cal. 394. Marsh, 2 Bam. & Aid. 673; Hope u. 'Stevenson v. Hoy, 43 Pa. St. Oust, cited in Shirreff v. Wilks, 1 East, 191. 53. 14 THE CONTEAOT. authority bind his principal as surety on a sequestration bond in a matter not connected with the business of the principaL' § 11. ■Where act of principal is prohibited by law, or is fraudu- lent, surety not bound. — ^When the act of the principal for which the surety undertakes to become responsible is prohibited by law, the surety will not be bound. Thus a statute provided that express companies should not do business in the state with- out recording in every county in which they did business a state- ment, showing the stockholders' names, residences, etc. An ex- press company without complying with the law, appointed an agent who gave bond with surety for the faithful performance of his duties. The agent collected money for packages sent and failed to pay it over, and it was held the surety was not bound. The bond being given for the performance of an illegal act, viz., sending packages by express, was void.^ The same thing was held in a case where a statute prescribed the terms on which a foreign insurance company could do business in a State, appoint agents., etc. The court said: "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.'" So where a statute prohibited the making of a lease to a slave, the surety on a lease made to a slave was held not bound.* The court said: " The defense set up that the contract under consideration is null and void, because it contravenes public policy, is not a per- sonal exception. If slaves were merely incapacitated from making a contract of lease, the case might be different, but there is no affinity between a prohibitory law, laying down rules of public policy, and one merely incapacitating a party for his own protec- tion or interest." The distinction is here drawn between a pro- hibition to the principal on the grounds of public policy, and a mere personal exemption of the principal. As will be hereafter seen, a mere personal exemption to the principal, as infancy or coverture, will furnish no defense to the surety. On the same principle the surety on a note may show as a defense that it was given by the principal to pay a gambling debt." So where the 'Gates V. Bell, 3 La. An. 62. *■ Levy v. Wise, 15 La. An. 38. •Daniels v. Barney, 22 Ind. 207. » LecHe v. Scott, 10 La. (5 Curry) "Thome v. Travellers Ins. Co. 80 412. Pa. St. 15. VOLTJNTAET BOND. 15 transaction wliich induces the giving of a note by the principal is fraudulent, the surety is not bound. Thus, A being a trader in embarrassed circumstances, was indebted to B for money lent and goods, and B promised to induce A's creditors to agree to a com- position on condition that A would give him a note for the money lent, signed by A and a surety; and it was agreed between A and B that the matter should be kept secret. The note was given, signed by a surety as agreed; B endeavored to effect a composition and failed; Held, the surety was not liable. The fraud was that B, by undertaking to procure the composition, obtained a secret preference, and the note being void in its crea- tion, could not be rendered valid by the subsequent fact that B failed to effect a composition.' § 12. Voluntary bond not required by law, or different from bond required, valid. — The general rule is that a bond, whether required by statute or not, is good at common law if entered into voluntarily, for a valid consideration, and if it is not repugnant to the letter or policy of the law; and the surety on such bond is bound thereby.^ The voluntary bond of a state treas- urer which is not demandable by law,' of a county treas- urer where there is no law requiring a bond to be given,* of a plaintiff in an attachment suit when no bond is re- quired by law.' are all valid and bind the sureties who sign them. But where a district judge having no authority to do so requires a father or natural tutor of a child to give bond for the faithful performance of his trust, and such a bond is given, the surety thereon is not liable. The maxim that, as a man consents to hind himself so shall he be bound, is not applicable to such a case, for the bond is not purely voluntary, but is required by the judge from the parties as the condition for the exer- cise of a function.^ Where a bond is required by law to be given, the voluntary bond of an executor or administrator to the ordinary, which varies from the form prescribed by the statute,'^ of a cashier containing nothing contrary to ' Wells V. Girling, 1 Brod. & Bing. * Supervisors of St. Joseph v. Coffen- 447; Id. 4 Moore, 78. bury, 1 Manning (Mich.) 355. "Thompson v. Buckhajinon, 2 J. J. 'Lartigue v. Baldwin, 5 Martin, 0. Marsh. (Ky.)416;Hohokeni). Harrison, S. (La.) 193. 1 Vroom (N. J.) 73. 'Ancion v. Guillot, 10 La. An. 124. 'Sooyads. The State, 38 New Jer. 'Ordinary v. Cooley, 1 Vroom (N. Law, 824. J.) 179. 16 THE CONTEAOT. law but varying from the statutory form,^ of a plaintiff in re- plevin, in which the condition does not conform to the stat- ute,? are all valid and binding on the sureties. Where a statute provided that the bond of a prisoner given for the liberty of the jail yard, should be approved by two justices of the peace, and a bond was given but not approved by the jus- tices, the sureties were held liable. The statutory requirement that the bond should be approved by two justices, was in- tended to prevent oppression by the creditor in refusing sufficient sureties, and the creditor having accepted the bond, the intention of the statute was complied with.* A statute required* that a bank cashier should give a bond conditioned for the faithful per- formance of his duties. The cashier gave a bond which provided for past as well as future delinquencies: Held, the bond was not void because it contained more than provided by statute. Being a voluntary bond and for a lawful purpose, it was good at com- mon law.* A statute provided that in all cases where an exe- cution should issue illegally, if affidavit of the fact was filed and a bond given, the execution should be suspended until the matter was determined, but the statute did not prescribe what the condi- tion of the bond should be. An execution was issued to which no seal of the court was attached. An affidavit of its illegality was filed, and a bond given, the condition of which was: "Now if it shall appear that the said writ has not been properly issued in this, that there is no seal to said writ, then the above obligation to be void." The sureties were not liable by the terms of the bond, but the court held them for the amount of the execution suspended, on the ground that as the statute did not prescribe the condition of the bond, its condition must be found in the ob- ject of the statute; that it was undoubtedly the intention of the sureties to become bound according to the liabilities imposed by the statute; and that as the object intended by them had been ' Grocers' Bank r. Kingman, 16 Graj court, etc., and should satisfy such 473. judgment as should be rendered by ^ Morse v. Hodson, 5 Mass. 314. the court. The last provision as to ' Bartlett v. Willis, 3 Mass. 86. the payment of the judgment, was not * Franklin Bank v. Cooper, 36 Me. required bylaw, but was inserted by 179. In Baker v. Morrison, 4 La. An. the sheriff. It was held not binding 372, a sequestration bond provided ot^ the surety. The bond, under the that the defendant should not send the circumstances, could not be said to be property out of the jurisdiction of the a voluntary one. VOLUNTARY BOND. 17 accomplished, they were liable.* This case is of very questiona- ble character, running counter, as it does, to the current of au- thority, which is, that a surety is not bound beyond the strict terms of his engagement. If it can be sustained at all, it can only be, upon its own peculiar circumstances. § 13. Voluntary bond binds surety. — The principle that the surety in a voluntary bond, made upon good consideration, and which does not contravene the policy of the law or the prohibi- tion of a statute, is liable at common law on such bond, has been applied to a great variety of circumstances. Such a bond is valid, even though another bond be required by statute. Thus, where a statute required a bank cashier to give a bond with two or more sureties, and he gave a bond with only one surety, such surety was held liable. The statute did not say no other bond but the one required should be taken, and was only directory.^ On the same principle the sureties on an administrator's bond, entered into before a probate judge de facto but not de jure, were held liable.' The sureties on a guardian's bond having become insol- vent, the uncle of the minors demanded of the guardian that he give another bond, which he did, with a new surety. ilSTo new bond was required by the court, but on a proper showing, one would have been required: Held, the surety on the last bond was bound.'' So, where a testator by will directed that his executor need give no bond, but the executor falsely represented to A that the court required a surety of him, and thereby induced A to be- come surety on an executor's bond, which was approved by the court, A was held liable. The fraud which the executor practiced on A would not avoid the bond unless the obligee participated in it.° A statute required that tobacco inspectors should give a bond with certain conditions, in the sum of $2,000, and such a bond was given. Two days before the giving of the bond, an amendment to the statute had been passed, requiring a bond of $5,000, and changing the condition somewhat. The bond already given was held to bind the sureties as a common law obligation.* Where a statute provided that injunction bonds should be given ' Mitchell V. Duncan, 7 Florida, 13. *Elam v. Heirs of Barr, 14 La. An. 'Bank of Brighton i). Smith, 5 Al- 682. len, 413. ^ Sebastian v. Johnson, 2 Duvall 'Pritchett v. The People, 1 GUman (Ky.) 101. (lU.) 525. « Lane v. Kasey, 1 Met. (Ky.) 410. 18 THE COHTEACT. in the office of the clerk of the court, the judgment of which was enjoined, an injunction bond not thus given was held valid, al- though the injunction would have been dissolved for want of a proper bond, if objection had been made." The sureties on the bond of a school fund commissioner, whose bond has not been approved by the proper authorities, but who has entered upon and exercised the duties of the office, and appropriated money, are liable on the bond at common law. The bond not being good as a statutory, but as a common law bond, perhaps the common law remedy on it would have to be pursued, and not the statutory remedy on statutory bonds." § 14. Obligation of surety must be delivered, and takes effect froHi time of delivery. — In order to bind a surety or guarantor his contract must be delivered, and it takes effect from the time of its delivery. A made a promissory note and delivered it to the payee, and the payee then gave the note to A in order that he might get a surety to it and return it. A got to sign the note as surety, but then refused to deliver it to the payee. The payee then sued A and C 'On the note, and it was held that C was not liable.^ The note had never been delivered after signed it, as A was in no sense the :agent of the payee to receive a delivery of the note. Moreover if C had been compelled to pay the note he could not have re- -covered indemnity from A, because A by refusing to deliver the note had refused to consent to being his surety. Where a bond is signed by the principal on Saturday and by the surety on Sun- "day, but is not delivered till Monday, it takes effect from its de- livery and the surety is bound.* A law provided that in no case should a bank cashier's bond be signed by a director of the bank as surety. A bank director signed such a bond as surety, but it was not approved till his term as director expired. Held, the bond took effect from the time of its approval and the surety was ■bound." § 15. Surety bound when his name not mentioned in body of instrument — Not bound ■when penalty of bond blank. — Although ' Cobb V. Curts, 4 Littell, (Ky.) 235. St. 448. To similai- effect, see State v. ' The State v. Fredericks, 8 Iowa, Young, 23 Minn. 551. ■553. 'Franklin Bank ». Cooper, 36 Me. ' Chamberlain v. Hopps, 8 Vt. 94. 179. 'Commonwealth v. Eiendig, 2 Pa. IMPLIED aUAEANTT. 19 the name of a surety is not mentioned in any part of the body of a bond, but a blank intended for it is left unfilled, yet if he sign, seal and deliver it as his bond, he is bounds So where the name of the surety is not mentioned in the obligatory part of a bond, but is mentioned in the recital of the condition, if he sign, seal and deliver it he is bound." "Where one signs a lease be- tween the signature of the lessor and lessee, in which lease it is said that the lessee " binds himself and his security," but no name of a surety, is mentioned in the lease and the lease is signed in the presence of others who sign it as witnesses, the party who signs between the signature of the lessor and lessee will be held as surety on the lease.* So where a lease had been signed by the lessor and lessees, and D, whose name was not mentioned in the lease, signed his name to it after the names of the lessees, adding to his name the word " surety," it was held that it suiii- ciently appeared that D was the surety of the lessees and that he was originally and not collaterally liable.* A promissory note commenced as follows: "For value received, the Fishkill Iron company promise to pay," etc. This note was signed by the president and agent of the company, their designations following their names. It was also signed by four other persons. Held, the last four signers were liable as sureties on the note, although they were not mentioned nor referred to in it. The court said it was sufficient that the instrument expressed au obligation on the part of the principal. A blank indorsement would have been sufficient to hold the surety and this was quite as effectual as a blank indorsement.' "Where, however, the penalty of- a bond is blank, it is void as to the sureties, and it cannot be held to be a covenant and thus bind them.' § 16. When party liable on implied guaranty. — ^Although a surety or guarantor generally becomes bound by express contract, yet persons are sometimes held as sureties or guarantors who do • Joyner v. Cooper, 2 Bailey Law " Holden v. Tanner, 6 La. An. (So. Car.) 199; Valentine v. Christie, 1 74. Eobinson (La.) 298; Potter v. The * Perkins -v. Goodman, 21 Barb. 23 Ind. 550; Soheid w. Leib- (N. Y.) 218. shultz, 51 Ind. 38; Neil B.Morgan, = Parks c.Brinkerhoff, 2 Hill (N.T.) 28 m. 524; Danker v. Atwood, 119 663. Mass. 146. ' Austin v. Richardson, 1 Gratt. (Va.) 'Barlieye. Tates, 2 Hen. & Mun. 310. (Va.) 398. 20 THE CONTEACT. not SO become bound. The law will, under certain circumstances, imply such contract. Thus, where two married women made a promissory note, and the payee indorsed it to A before maturity, A at that time knowing that the makers were married women, it was held that the indorsement of the note to A was an implied guaranty that the makers were competent to contract in the char- acter in which, by the terms of the note, they purported to con- tract; and the fact that A, when he took the note, knew the makers were married women, did not change the rule.' So the vendor of a promissory note who transfers it by indorsement expressed to be without recourse, impliedly guaranties the genuineness of the signatures of the prior parties whose names appear on the note.^ A person not a party to a promissory note, and who does not indorse it, but who sells it and receives the money, by impli- cation guaranties the genuineness of the signatures; and this, whether he receives the money paid for the note for himself or for another. The only way he can avoid such responsibility, is by an agreement to the contrary.' So the purchaser of goods who transfers without indorsement, the promissory note of a third party, impliedly guaranties that the sum expressed in the note is due.^ A person who procures notes to be discounted at a bank, impliedly guaranties the genuineness of the signatures of the makers and indorsers; and such implied contract is not a repre- sentation concerning the character, credit or ability of another, within the statute of frauds; and such person may be sued as a guarantor of the notes, if the signatures are forged.® The reason on which the last preceding cases are grounded is thus well ex- pressed by the court in the case last cited: '< It seems to fall under a general rule of law, that in every sale of personal property the vendor impliedly warrants that the article is, in fact, what it is described and purports to be, and that the vendor has a good title or right to transfer it." The agent of another for the sale of prop- erty, who has agreed not to sell for credit except to good and responsible parties, and to take no paper but good collectible paper, 'EmriK. Downs, 15 New York, 575. * Jones v. Teargain, 1 Dev. Law, Tg^imilar effect, see OgdenB. Blyden- (Nor. Car.) 420. -burgh, 1 Hilton (N. Y.) 182. 6 Ca^ot Bank v. Morton, 4 Gray, 156, ^Dumont v. Williamson, 18 Ohio per Shaw, C. J.; see, also, Jones v. St- 515. Ryde, 5 Taunt. 488. "Lyons v. Miller, 6 Gratt. (Va.) 427. PAEOL EVIDENCE OF SUEETYSHIP. 21 and such as he is willing to guaranty, and who takes ypaper he knows to be worthless, and turns it over to his employer who is ignorant of its character, is liable as guarantor of such paper. He can be sued and judgment had against Iiim without the paper being returned to him. He is not entitled to the paper till he pays the debt.^ § 17. Joint maker of note may be shovrn by parol to be surety. — In view of the fact that a surety is entitled to certain rights and privileges to which the principal is not, it often be- comes highly important to determine whether a party to an instrument is principal or surety, and if in fact a surety, when and where that fact may be shown. When several parties exe- cute a joint or joint and several promissory note not under seal, and there is nothing in the note to indicate that any of them are sureties, if some of them are in fact sureties and this is known to the creditor, such sureties may both at law and in equity show by parol that they were sureties and that they were known to be such by the creditor, and they will be entitled to all the rights, privileges and immunities of sureties, and will be discharged by any act of the creditor, after he had knowledge of the fact of suretyship, which would dis- charge any other surety.^ But it must appear that the 'Clarki). Roberts, 26 Mich. 506. 16 Wis. 666; Mechanics Bank v. ^Higdoni). Bailey, 26 Ga. 426; Lime Wright, 53 Mo. 153; MoCarter ». Rock Bank v. Mallett, U Me. 547; Id. Turner, 49 Ga. 309 ; Goats v. Swindle, 42 Me. 349; Grafton Bank v. Kent, 4 55 Mo. 81; Mariners' Bank v. Abbott, NewHamp. 221; Mathesou ». Jones, 28 Me. 280. In Manley v. Boycot, 80 Ga. 306; Piper v. Newcomer, 25 decided by the Queen's Bench in 1853, Iowa, 221; Cummings v. Little, 45 Me. it was held that the defense could not 183; Kelley v. Gillespie, 12 Iowa, 65; be set up, unless the holder when he Bank of St. Albans v. Smith, 80 Vt. took the note knew of the suretyship 148 ; Davis ». Mikell, 1 Freeman, Ch. and agreed to treat the surety as such. R. (Miss.) 548; Fraser v. McConnell, But in Pooley v. Harradine, 7 Ell. & 23 Ga. 368; Corielle v. Allen, 13 Iowa, Bl. 481, decided in 1857, and in Greeu- 289; Roberts v. Jenkins, 19 La. (Curry) ough v. McClelland, 2 BE. & Ell. 424, 453; Brown v. Haggerty, 26 111. 469; decided in 1860 by the same court, it Bradner v. Garrett, 19 La. (Curry) was held that under the statute, allow- 455; Bruce v. Edwards, 1 Stew. (Ala.) ing equitable defenses to Ve made at 11; Jones «. Fleming, 15 La. An. 522; law, the defense might be made at Flynn v. Mudd, 27 111. 323; Branch law, where the creditor knew of the Bank at Mobile v. James, 9 Ala- 949; fact of suretyship but did not agree to Kennedy v. Evans, 81 III. 258; Stewart hold the surety as such. The court V. Parker, 55 Ga. 656; Riley v. Gregg, also held that, but for the statute the 22 THE CONTRACT. creditor at the time the act complained of was done, knew of the fact of suretyship.' The great weight of authority and of .reason is in favor of the law as above stated. The cause alleged against showing the fact of suretyship by parol is, that it contradicts or varies the term's of the instrument signed by the surety. The answer to this is, that such proof does not controvert the terms of the contract, but is simply proving a fact outside of, and be- yond, such terms.^ " It is a fact collateral to the contract, and no part of it." ^ " It is not to affect the terms of the contract, but to prove a collateral fact, and rebut a presumption." * The par- ties still remain bound by the same instrument and in the same manner. " Can you not prov6 the defendant an infant, a feme covert, or a bankrupt, in order to discharge him or her, and that, too, while others remain bound? Why not also prove him a surety?"' "The general rules of evidence are the same at law as in equity; and it is no more competent to vary the terms of a written instrument by parol evidence in equitable actions, than in those strictly legal, unless in exceptional cases, for the purpose of maintaining an action or defense under some recognized head of equitable jurisdiction. The confusion and apparent conflict in the authorities must, I think, have originated in the idea that defenses of this character were equitable in their nature, and could only be available in a court of equity. When it was con- ceded that they were equally available in a court of law, it is dif- ficult to find a reason for excluding the same evidence at law that is admissible in equity. However this may be, and without in- voking any equitable rule, a conclusive answer to the objection to this evidence in any court, in my opinion, is that it does not tend to alter or vary either the terms or legal effect of the written in- strument. The contract was in all respects the same, whether the defendant was principal or surety. In either case, it was an ab- solute promise to pay $1,000 one day after date, nothing more and defense could not have been made at = Valentine, J., in Eose v. Williams, law, but must have been made in 5 Kansas, 483. equity. See, to same effect, Perley v. ^gij^^^ C. J., in Carpenter v. Kinff, Loney, 17 Up. Can. Q. B. R. 279. 9 Met. 511. ' Neel V. Harding, 2 Met. (Ky.) 247: . *Shaw. C. J., in Harris ». Brooks, Orvis V. Newell. 17 Conn. 97; Wilson 21 Pick. 195; also Breese, J., in Ward V. Foot, n Met. 285; Murray v. Gra- v. Stout, 32 111. 399. ham, 29 Iowa, 520. ^ Lumpkin, J., in The Baiik ». Mum- ford, 6 Ga. 44. PAROL EVIDENCE OF STJEETYSHIP. 23 nothing less. There is neither condition nor contingency. It would have been precisely the same contract if the defendant had added the word " surety " to his name. The addition of that word would not have varied it in the slightest degree. The only ser- vice it would have performed, would have been to give notice to the other part}-- of the fact. If this is shown aliunde, it is equally effective."* The equity of the surety to be discharged when he is prejudiced by the act of the creditor, " does not depend upon any contract witb the creditor, but upon its being inequitable in him to knowingly prejudice the rights of the surety against the prin- cipal; " " and it is as inequitable in the creditor to prejudice those rights when he is informed of th^ fact of suretyship by parol as when he is informed of it by the instrument itself. It has, how- ever, been held by courts of higb respectability, that the fact of suretyship could not, under the foregoing circumstances, be shown by parol.' It may be shown by parol that the maker of a prom- issory note was in fact an accommodation drawer for a firm who were second indorsers, and he will be entitled to the same rights as any surety.^ A party signed a promissory note, and added the word " security " after his name. It was held that it might be shown by parol that he was the principal. The court said the addition of the word " security " is " at most the statement of a fact forming no part of the contract ; and if untrue, may be shown to be so by parol as well as any other fact." * ^See the elaborate opinion of Donaldson, 5 Md. 389. In Hartman Church, C. J., in Hubbaid v. Gurney, v. Burlingame, 9Cal. 557, it was held 64 New York, 457. that a joint maker of a promissory 'Coleridge, J., in Pooley®. Harrad- note, although known by the holder me, 7 El. & Black. 431. to be a surety, was not entitled to 'Shriverw. Lovejoy, 82 Gal. 574; notice of demand and non-payment. Bull V. Allen, 19 Conn. 101; Campbell The same thing was held substantially v. Tate, 7 Lansing (N, Y,) 370; Hen- in Kritzer v. Mills, 9 Cal. 21. See, drickson v. Hutchinson, 5 Dutoher (N. also, on this subject Aud v. Magruder, J.) 180. In Kerr «. Baker, Walker 10 Cal. 282. (Miss.) 140, and Farrington \\ Galla- * Marsh v. Consolidation Bank, 48 way, 10 Ohio, 543, it was held it could Pa. St. 510. not be shown at law. In Stroop u. * Rose v. Madden, 1 Kansas, 445. McKenzie, 38 Tex. 132, and in Ball v. In Sisson ». Barrett, 2 New Tork, 406, GUson, 7 Upper Can 0. P. R. 531, a promissory note was executed by A, it was held it could not be shown un- B and C, the principal debtor being less it was also shown that the creditor A. The last signer of the note, C, added agreed to hold the surety as such, the word " surety " to his signature: The same thing was held in Tates v. Held, that without extrinsic proof, C 24 THE CONTEACT. § 18. Joint maker of sealed instrument may be shown by parol to be surety. — "Where the instrument is under seal the fact of suretyship may be shown by parol at law, the same as if it was not under seal, although there is not, perhaps, quite the same unanimity in the decisions on this point as there is with refer- ence to unsealed instruments. The same reasons which allow the fact of suretyship to be shown by parol in the case of unsealed instruments apply with equal force to the case of sealed instru- ments, and the uniform tendency of the later decisions is to allow a surety to make- the same defenses at law as in equity. It has accordingly been held that one of the makers of a joint note under seal may, at law, show by parol that he is only a surety.' One of the makers of a joint and several sealed note may, at law, show by parol that he is a surety only." The same thins: was held with reference to a sealed note, where a statute Iiad placed sealed and unsealed instruments on the same footing.' One of two or more obligors in a joint and several bond may prove by parol that he is a surety only where nothing to indicate the fact appears on the bond, and he will be entitled to give the creditor statutory notice to sue, the same as any other surety,* and will be discharged at law by time given the principal.* A gave his individual bond and a mortgage to secure the same for a sum of money borrowed by him, one half of which was for the use of, and was used by, B. Afterwards, A paid all the money and sued B at law for his share, and it was held that A might show the fact of his suretyship, although it did not appear from the bond or mortgage.' A lease was made to two, one of whom was sole occupant of the premises which he held over the term, and debt for the rent of the whole period of actual occupancy was brought against both. Held, that the lessee who did not occupy, might show by parol that he was only a surety, and con- was not to be presumed to be a surety held tliat the fact could not, at law, for both A and B. be shown by parol.^ 1 Rogers v. School Trustees, 46 lU. = Smith v. Clopton, 48 Miss. 66. 428; Smith v. Doak, 8 Tex. 215. *Creight). Hedrick, 5 West Va. 140; ^Fowler v. Alexander, 1 HeiskeU see, to same effect, Scott «. Bailey, 23 (Tenn.) 425. This case was decided in Mo. 140. 1870. The same court, in 1836, in " Dickerson ». Commissioners of Rip- Deberry v. Adams, 9 Yerg. (Tenn.) ley Co. 6 Ind. 128. 52, and in 1847, in Dozier v. Lea, 7 ^ Metzner v. Baldwin, 11 Minn. 150. Humph. (Tenn.) 520, in similar cases, OEEDITOE S KNOWLEDGE OF SUEETT8HIP. 25 sequently not liable for the holding over.* On the contrary, it has been held that when the instrument is under seal, the fact of suretyship cannot, at law, be shown by parol,^ but it may in all cases be shown in equity.' § 19. If creditor knew of suretyship when he did the act complained of, this is sufiSoient to secure surety his rights. — The fact that the holder of a negotiable instrument did not know of the suretyship of some of the parties when he took it, will make no difference in the rule before stated. If he had no knowl- edge of the fact when he took the instrument, but was informed of it before doing the act complained of, this will be sufficient to entitle the surety to all the rights of any surety.* A promissory note was signed by several parties, two of them being in fact sur- eties, but "that not appearing from the note, the payee assigned the note to a party who did not know of the suretyship at the time of the assignment, but was afterwards informed of it, and afterwards gave time to the principal: Held, the sureties were discharged." The court said: " The principle obtains for the pro- tection of the sureties, and the holder of such notes, knowing their relation, should avoid any act to endanger their rights; and we are unable to perceive the distinction as to when the knowledge was obtained — whether before or after the purchase, so that it was known before the extension was made." In another case, depending on the same state of facts, the same thing was held. The court said: "The injury to the surety is the same as if the creditor had possessed the knowledge at the time the note was taken." * A financial company, by agreement with an agent, accepted bills of exchange which were discounted for the agent by a discount company, the agent guarantying payment of the bills. The discount company was not, at the time, aware of the relations between the acceptors and the agent, but was informed before the ' Kennebec Bank ». Turner, 2 Green- , sing (N. T.)97 ; Pooley ». Harradine, leaf (Me.) 42. 7 Ell. & Black, 431 contra, Baxik of 'Levy ». Hampton, 1 McCord Law Upper Canada v. Thomas, 11 Up. Can. (So. Car.) 145; Pritcliard ». Da-ris, 1 C. P. R. 515. Spencer (N. J.) 205; Willis v. Ives, 1 ^Lauman ». Nichols, 15 Iowa, 161. Sm. & Mar. (Miss.) 307. « Wheat v. Kendall, 6 New Hamp. 'See cases last cited and Burke ». 504. To a similar effect, see Smith ». Cruger, 8 Tex. 66. Shelden, 85 Mich. 42; Wythes v. La- *Bank of Missouri v. Matson, 26 bouchere, 3 De Gex & Jones, 593. Mo. 243; Colgrove v. Tallman, 2 Lan- V 26 THE CONTEAOT. bills matured, that the agent was principal and the acceptors were sureties, and afterwards gave time to the agent: Held, the ac- ceptors were discharged, and might come into equity, and have the hills canceled.! This rule is the logical and necessary result of holding that parol evidence of the creditor's knowledge of the fact of suretyship can be given at all. It is the fact of knowledge on the part of the creditor, coupled with certain equitable princi- ples, and not any contract between him and the surety, which raises the equity on behalf of the surety, and it necessarily fol- lows that the equity exists from the time the creditor has the knowledge. § 20. Surety must show that creditor knew of suretyship — VThat is sufficient evidence of the fact. — "When a surety sets up claims depending on that relation and the fact of suretyship does not appear from the instrument signed by him, he must, in order to sustain such claims, prove that the creditor knew of the suretyship.^ Where a promissory note was held by the payee and the note did not show the fact of suretyship, but it was proved that one of the makers was only a surety, the court held that it would be presumed that the creditor knew of the suretyship.' Where several persons execute a promissory note and there is nothing on its face to show their relations to each other, there is no presumption from the order in which they sign that any, or which of the signers, are sureties.* Where three parties signed a bond and it did not appear from the face of the bond, who, if any one, was surety, the circumstances of one obligor making payments, and being resorted to by the creditor, raises a strong presumption that he was the principal ; while the circumstances of another obligor not making payments and not being called upon for them, raises a presumption that he was only surety.* A ' Oriental Financial Corporation v. was held that whenever one having Overend, Law Rep. 7 Chancery Appl. no interest in a note, becomes a party Gas. 142. This decision was affirmed to it at the request and for the accom- by the House of Lords on appeal, in modation of another, the relation of 1874, and is the settled law of Eng- principal and surety exists, and the laud. Liquid ators of Overend, Gumey original holder, between whom and the & Co. ». Liquidators of Oriental Fi- principal the consideration passed, is nandal Corporation, Law Rep. 7 Eng. presumed to have knowledge of the fact. & Irish Appl. Cas. 348. *Panl v. Berry, 78 111. 158; Sum- = Wilson V. Foot, 11 Met. 285. merhill v. Tapp, 52 Ala. 227. "Ward V. Stout, 32 111.399. In ^^ougiity ^. Bacot, 2 Desaussure, Cummings v. Little, 45 Me. 183, it Eq., (So. Car.) 546. PEOPEETY PLEDaED FOE ANOTHEe's DEBT. 27 promissory note, some of the makers of which were in fact sure- ties, thou.^h nothing to indicate the suretyship appeared on the note, was transferred to A after it was overdue and discredited. A, without any actual notice of the suretyship, gave time to the principal: Held, the fact that the note was overdue, was not no- tice to A of the fact of suretyship, and that the sureties were not discharged.^ The court said: " He who takes a discredited note is presumed to be acquainted with every defense to which it is sub- ject. But whether some of those whose names are upon a note are sureties, is a matter wholly immaterial to the person who purchased the note, and he cannot be presumed to have in- quired or to have learnt in what character they signed, because that was a circumstance with which he had no concern." § 21. Property pledged by one for debt of another, occupies position of surety. — When property of any kind is mortgaged or pledged by the owner to answer for the debt, default or miscarriage of another person, such property occupies the position of a suretv or guarantor, and anything which would discharge an individual surety or guarantor who was personally liable, will, under similar circumstances, discharge such property.^ This rule is applicable to every variety of circumstances. A being indebted to B, and being indebted to A, they get together and agree that B shall surrender up A's note and take C's in its place, A at the same time canceling his claim against for the same amount, and it is done accordingly. gives B a mortgage to secure his note thus given on a piece of his property ; A also gives B a mortgage on some of his property to secure the same note of C: Held, that by this transaction A's property became the surety of 0, and was discharged by the giving of time to C A material man took th.e note of the contractor for the materials furnished for a build ing, and extended the time of payment. The owner having no notice of the claim, paid the contractor in full, before the note fell due: Held, the building occupied the position of surety for 'Nicliols V. Parsons, 6 New Hamp. neetown, 14 lU. 20; Lord Harberton 30. V. Bennett, Beatty (Ir. Ch.) 386; Row- ^ Robinson v. Gee, 1 Vesey Sr. 251; an v. Sharp's Rifle Co., 33 Conn. 1; Royal Canadian Bank v. Payne, 19 Union Bank v. Govan, 10 Smedea & Grant's Oh. R., 180; Cbristiner v. Mar., (Miss.) 388; Bowker v. Bull, 1 Brown, 16 Iowa, 130; Denison v. Gib- Simons, (N. S.) 29; White v. Ault, 19 son, 24 Mich. 187; Joseph v. Heaton, Ga. 551. 5 Grant's Ch. R., 636; Ryan v. Shaw- 'White v. Ault, 19 Ga. 551. 28 THE CONTRACT. the contractor, and that the agreement to give time discharged the building from the lien.^ When a wife mortgages her real estate for the debt of a firm of which her husband is a member, such real estate occupies the position of a, surety, and if it be- comes released at law, equity will not charge it.° A held a judg- ment against B, which was a lien upon two tracts of B's land. B sold one tract to 0, the other tract being sufficient to pay the debt. D with a knowledge of the sale of the one tract to 0, pro- cured a release from A of the other tract, and then bought it of B ; and also bought A's judgment against B ; Held, C's land was discharged from the lien of the judgment. After the sale of the tract to 0, the creditors of B were bound to resort to B's other land before coming on that sold to 0. It occupied the position of a surety, and the surety's right to subrogation being de- stroyed, it was discharged.^ On the same principle, where a mortgagor sells a portion of the mortgaged premises, and in the deed of conveyance expresses that the same is "subject to the payment by the said grantee of all existing liens upon said prem- ises," the effect of this charge is to make the part of the premises so conveyed the principal debtor for a proportionate part of the mortgage debt, and the mortgagor a surety only.* So where land subject to a judgment, was sold for its full value by the judg- ment debtor to a third person, it was held that the land occupied the position of a surety, and was discharged by the creditor releasing subsequently acquired securities for the debt.* § 22. Property of wife pledged for debt of husband, occupies position of surety.— "While a married woman cannot usually be- come personally bound for the debt of her husband, she may or- dinarily pledge or mortgage her separate property for his debt, and if she does so, such property occupies the position of a surety or guarantor, and will be discharged by anything that would discharge a surety or guarantor who was personally liable.^ 'Hill®. Witmer, 2 Philadelphia, Denison ». Gibson, 24 Mich. 187; Ag- (^^•) '^^- new V. Merritt, 10 Minn. 308; Wal- ^Leffingwell v. Freyer, 21 Wis. 392. lace v. Hudson, 37 Tex. 456: Wolf v. 'Lowry v. McKinney, 68 Pa. St., Banning, 3 Minn. 202; Spear d. Ward, 294. 20 Cal. 659; Niemcewicz v. Gahn, 3 * Hoy D. Bramhall, 4 C. E.Green, Paige, 614; Stamford, &c.,Banking Co. (N. J.) 663. V. Ball, 4 De. Gex., Pih. and J., 310; * Barnes w, Mott, 64 New York, 397. Gahn ». Niemcewicz, 11 Wend. 312; « Johns V. Reardon, 11 Md. 465; Knight ». Wliitehead, 26 Miss., 245; 29 Where a married woman mortgages her separate real estate for the debt of her husband, she will, after his death, be entitle-d to have her estate exonerated out of his assets. " In such case the wife is regarded as a surety." ^ Where a married woman pledged her property to indemnify the surety of her husband, the prop- erty thus pledged was treated in all respects as a surety.^ Where a husband mortgages his property for his debt, and in the same mortgage the wife conveys her own separate property as security for the same debt, her property so conveyed will be treated in all respects as a surety.^ Where the fact of suretyship does not appear from the mortgage, the wife must show that the creditor knew of the suretyship in order to entitle the property to stand in the position of a surety. But the fact of suretyship may be proved by parol.* Where a mortgage made by husband and wife, of the wife's property for the husband's debt, recited that it was made in consideration of $6,000 to the mortgagors, and " each of them " paid, it was held the wife might show by parol that the debt was that of the husband, and thus avail herself of the rights of a surety with reference to the property.' Where the title to the wife's property mortgaged for her husband's debt is recorded, such record will be sufficient notice to the creditor of the fact of suretyship.^ When a husband borrows money and secures it by mortgage on his wife's lands which she executes with him, and he lays out the money in permanent buildings and improve- ments on such lands, the lands do not occupy the position of a surety. The debt is, in reality, that of the wife.'' A wife who joins with her husband in a mortgage of his real estate for the payment of his debt, does not, as to such estate, occupy the po- sition of a surety.* A husband mortgaged his real estate to secure his debt, and his wife joined in the mortgage, and waived Vartie v. Underwood, 18 Barb (N. T.) 312; Niemoewicz v. Gahn, 3 Paige, 561; Smith v. Townsend, 25 New 614. York, 479; Bank of AlMon v. Bums, * Spear v. Ward, 20 Cal. 659. 46 New York, 170; Coats v. McKee, 26 « Bank of Albion v. Burns, 46 New Ind. 228; Wilcox V.Todd, 64 Mo. 388; York, 170; Smith v. Townsend, 25 Purvis V, Cartsaphan, 73 Nor. Car. 575. New York, 479. ' Knight V. Whitehead, 26 Miss. 245. ' Dickinson v. Codwise, 1 Sandford's "Hodgson V. Hodgson, 2 Keen, 704. Ch. R. 214. 'Wheelwright u. De Peyster, 4 Ed- ^Ha^igy ». Bradford, 9 Paige, 200. wards' Ch. R. 232; Loomer v. Wheel- But see Dawson v. Bank of White- wright, 3 Sanford's Ch. R. 135. haven, Law Rep. 4, Ch. Div. 639. *6ahn v. Niemcewicz, 11 Wend. 30 THE CONTEACT. her homestead rights. It was held she did not with reference to such homestead rights, occupy the position of a surety, and could not take advantage of time given the husband.^ The court ad- mitted that if the separate estate had been mortgaged, she would have been entitled to the rights of a surety, but said of a home- stead, " if it is an estate, it is such an estate as has never been defined by law, an estate unknown to the common law, techni- cally, no estate at all." § 23. 'When retiring member of firm becomes surety of other partners for firm debts. — When One" member of a partnership re- tires from the firm, and the remaining members agree with him to pay the firm debts, and these facts are known to the creditor, the member so retiring will be considered, in law, a surety.^ A and B being partners and indebted, A died. B then formed a partnership with D, and B and D agreed to -pay the debts of the old firm. The creditor knew of this, and gave time of pay- ment to B and D for three years, for the debt of the old firrp. Held, the estate of A occupied the position of a surety, and was discharged.^ If a retiring member of a firm agrees to bear a portion of the loss upon a note taken by the other partners towards their distributive share of the partnership effects, provided the note cannot be collected from the maker, he occupies the position of surety for the maker pro tantp, and will be discharged if the holders of the note give time to the maker.* A and B were part- ners, and indebted to C ; A sold his interest in the partnership to B, who covenanted to pay all the partnership debts, and this was known to C. Afterwards B made an arrangement under the bankruptcy acts with his creditors, including 0, by which C agreed to take a less amount for the partnership debt, and to ex- tend the time. Held, A occupied the position of a surety, and was discharged both by the giving of time and by the novation ' Jenness v. Cutler, 12 Kansas, 530. retiring member was not discharged; ^ Thurber v. Corbin, 51 Barb. (N.T.) Vamam v. Harris, 1 Hun. (N. T.), 215; Colgrove ». Tallman, 2 Lansing, 451. (N. T.) 97. But where under such cir- ' This was decided by the House of cumstances the creditor took from the Lords, in Oakeley v. Pasheller, 10 remaining member his note for the BKgh, (N. S.) 548. To same effect, firm debt, upon the agreement that if see Smith v. Shelden, 35 Mich. 42. See paid it should cancel the debt, but if also, Colgrove v. Tallman, 67 New not he should hold the firm for it, and York, 95. the note was not paid, it was held the •• Wilde v. Jenkins, 4 Paige, 481. VENDOR OF LAND, SUEETT. 31 of the debt.* "Where a member of a firm transferred bis interest therein to a third person, who was received into the firm, and as- sumed all tbe liabilities of the retiring member, it was held that such retiring member occupied the position of a surety for the firm debts to the extent that the assets of the firm were sufficient for their payment." A and B were partners, and dissolved their partnership, B taking the business, and agreeing to pay the firm debts. Afterwards, judgment for a firm debt was recovered against A and B, which A was obliged to pay, and by agreement with the creditor, A sued out execution on the judgment against the land of B. Held, that as between themselves, A was the surety of B, and had a right to make the agreement with the creditor, and could hold the land against subsequent creditors of B.^ Three persons were in partnership in mercantile business. Two sold out to the third, who agreed to pay the partnership debts. The partner thiis assuming the firm debts, remained in possession of the former property of the firm, and was from time to time, for eight months, selling out the goods, when the firm debts having become due, and not being paid, one of the retiring partners was sued for such firm debts, and thereupon filed a bill to compel the partner who assumed the debts to pay them from the property which had belonged to the partnership. Held, he occupied the position of a surety, and was entitled to the relief; a surety having a right to come into equity tb compel the principal to pay the debt.* § 24. Vendor of land -who sells it subject to mortgage, is sufety for mortgage debt. — If a party owning land, encumbered by mortgage to secure his debt, sells it, and the vendee, as part of the purchase price, agrees to pay the mortgage debt, the vendor, as between themselves at least, becomes the surety of the vendee for the mortgage debt, and the vendee becomes the principal, and the vendor will, as to such debt, be entitled to the same rights and remedies against the vendee that any surety has against his principal.^ Whether the vendor in such case would be entitled to all the rights of a surety as against the creditor, who had knowledge of the facts, is not quite so clear upon authority. A ' Wilson V. Lloyd, Law Rep. 16 Eq. * West v. Chasten, 12 Fla. 315. Cas. 60. ^ Mills v. Watson, 1 Sweeny, (N.T.) " Morss V. Gleason, 64 New York, 374; Cornell v. Prescott, 2 Barb. (N. 204. T.) 16; Marsh v. Pike, 1 Sandford's ' Waddington v. Vredenbergh, 2 Ch. R. 210. Johns. Cas. 227. 32 THE CONTEAOT. and B purchased land jointly, and gave back a joint bond and mortgage for the purchase money: A afterwards conveyed his half interest to B, and B agreed to pay the mortgage and gave A a bond of indemnity against the mortgage: Held, A occupied the position of a surety and was entitled to the same rights of subro- gation to which any surety would have been entitled, notwith- standing the bond of indemnity.' Under a similar state of facts of which the creditor had notice, (except that no bond of indem- nity was given the vendor,) it was held that the vendor was not discharged because the creditor released the mortgage on a por- tion of the land. This was placed upon the ground that while as between themselves, the vendor was the surety of the vendee, yet the vendor did not occupy that relation as to the creditor, and was not entitled to the rights of a surety as against the cred- itor, unless the creditor, for a valuable consideration, agreed to accept him as a surety." Where the owner of land incumbered by mortgage executed by him, sold it subject to the incum- brance, it was held that in equity the land became the primary fund for the payment of the debt, that the vendor occupied the position of a surety, and upon payment of the mortgage debt was entitled to be subrogated to the rights of the creditor the same as any other surety.^ Under a similar state of facts it was held that the vendor was a surety, and was discharged by time given the vendee by the creditor, even though it was expressly agreed be- tween the vendee and creditor that the mortgage and the debt should remain in all other respects unaffected by the giving .of time.* As the rights of the surety against the creditor do not depend upon contract between them, but are founded upon equitable principles ; and as it is settled that if the creditor does ' Cherry v. Monro, 2 Barb Ch. R. 222. In Penfield v. Goodrich, 10 618. The same principle was held in Huti. (N. T.) 41, and Meyer v. Lath- successton of Daigle, 15 La. An. 594. rop, 10 Hun. (N. T.) 66, it was held ''James v. Day, 37 Iowa, 164. The that the vendor of land which he con- same principle was held in Marsh v. veyed subject to a mortgage, was not Pike, 1 Sandford's Ch. R. 210, and discharged by the creditor giving time the court, on a bill filed by the vendor, to the vendee for payment of the refused to compel the creditor to col- mortgage debt. But it was admitted lect the money from the mortgaged, that the land was the primary fund premises, but granted relief against for the payment of the debt, and that the vendee as a principal. as between themselves the vendor was " Johnson v. Zink, 51 New York, 333. the surety of the vendee. *Calvo V. Davies, 8 Hun. (N.Y.) JOINT 0BLIG0E8 AS SUEETIES. 33 not know of the suretyship when he takes the obligation of the Biiretj', but is informed of it afterwards, the rights of the surety then arise; these principles seem to apply with full force to the point under consideration, and it seems clear on principle, that the vendor in such cases as the foregoing, is entitled as against the creditor, to all the rights of any surety. § 25. Joint obligors are sureties for each other — When sole maker of note or bond is surety, etc. — Where several persons purchase land, it being understood between them that each shall have an equal share of it, and they all join in a bond for the pur- chase money, they are sureties for each other; and if one fails to pay any portion of his share, and the others pay it, the one fail- ing to pay will have no interest in the land, which he or his cred- itors can reach, till his share is paid up.* In a similar case, where one of two joint purchasers paid more than his share, it was held that he was surety for the excess, and entitled to set up the bond as a specialty debt against the estate of his co-purchaser.^ Each principal obligor in a joint bond is, as between them, a surety for his co-obligor.* Where two administrators and two sureties exe- cuted a joint and several administration bond, it was held that each of the administrators was surety for the other, and if one committed a devastavit, the other was chargeable paripassu with the other sureties, but was not liable as principal.* When a prom- issory note is executed by two persons, the consideration going one-half to each of them, as between themselves, they are each principal for one-half the debt, and surety of the other for the other half.' The sole maker of a promissory note is sometimes entitled to stand in the position of a surety. Thus W, who was absent, wrote to IST, requesting him to borrow of M a sum of money to pay a debt of W, promising in the letter to repay the money on his return. This letter was shown to M, and the money was obtained, for which IST. gave his individual note. W, on his return, went to M with the money, and offered to pay N's note ' Deitzler v. Miahler, 37 Pa. St. * Morrow's Admr. v. Peyton's Admr. 82. 8 Leigh, (Va.) 54. ' Stokes V. Hodges, 11 Ricli. Bq. (So. ' Hall v. Hall, 34 Ind. 314; holding Car.) 18.5; to the same effect see Crafts that a court of equity will look at all V. Mott, 4 New York, 604. the circumstances of a case to deter- ' Hatch V. Norris, 36 Me. 419 ; for mine whether or not a party is a sure- special case on same •subject see Coxt). ty; see Eyre v. Hollier, Lloyd & Goold, Thomas' Admx. 9 Gratt, (Va.) 312. (Temp. Plunket) 250. 3 34 THE COKTEACT. but M permitted W to retain the money, and agreed to wait for it: Held, IST was a surety, and was discharged.' A agreed to take B's notes for a certain debt about to be created, and also cer- tain raih'oad .shares as collateral security for the notes, provided B would furnish him the bond of responsible parties conditioned that they would take the shares and notes at the end of two years' and pay what should remain due on the notes. Held, that al- though such parties did not sign the notes, they were in fact sureties of B, and not original promisors, and that they were entitled to all the rights of sureties." If a purchaser of goods, subsequent to the sale, gives a portion of them to A, and A unites with the pur- chaser in a joint note for the purchase money, with the under- standing that A signs as surety only, the fact that A received a part of the goods from the purchaser as a gift, does not make him a principal in the note.* § 26. Stockholders of a corporation, liable for its debts, are not Its sureties — When surety becomes principal, etc. — Where the charter of a corporation made the stockholders "jointly and sev- erally, personally liable for the payment of all debts or demands contracted by the said corporation," it was held the stockholders were principal debtors in their individual, as well as their cor- porate capacity, and were not sureties of the corporation, nor dis- charged by time given to it.^ When two parties, for mutual accommodation, loan their notes to each other, neither thereby be- comes a surety for the other. A loaned two of his individual notes to B, which B discounted, and A had to pay. At the same time as the former loan, B loaned two of his individual notes for the same amount, and due at the same time, to A. After paying the notes, A claimed certain rights of subrogation as the surety of B in the two notes which he had paid: Held, he was not a surety, and was not entitled to the subrogation.^ A surety may, by subsequent dealings between himself and the creditor, become a principal. A surety on a note given for the price of a negro, gave his own note for a balance remaining due on the original note, in discharge of such balance: Held, that by this transaction the surety ceased to be the surety of his principal, and became his 'McQuestenw.Noyes, BNewHamp. *Harger v. McCuUough, 2 Denio, 19' 119. To same effect, see Moss v. Mc- ' Watriss v. Pierce, 32 New Hamp. Cullough, 7 Barb. (N. T.) 279. 560. ' Stickney v. Mohler, 19 Md. 490. » Fraser v. McConnell, 23 Ga. 368. SUEBTT AFTEE JUDGMENT. 35 creditor, and that he could not make the defense to the last note that the negro was unsound, and the consideration of the first note had failed.' Judgment having been obtained against a surety, he entered into a new arrangement with the creditor, irrespective of the principal, by which execution was not to issue while he kept up certain policies on his life for securing the debt, and the creditor was to take a less amount than the judgment. It was held that by this arrangement the surety became a principal, and was no longer entitled to any of the rights of a surety.^ § 27. Surety entitled to same rights after judgment against him as before. — The relation of principal and surety continues after judgment against the surety, and a surety is, both at law and in equity, entitled to the same rights, and will be discharged by the same act of the creditor after, as before, judgment.* It has in a few cases been held that the character of the surety as such became merged in the judgment, and that thenceforth he became a principal and was not entitled to the rights of a surety.* There is, however, very little conflict of au- 'Fluker v. Henry's Adm'r, 27 Ala. 403. ''Reade v. Lowndes, 23 Beavan, 361. To the effect that a surety does not become a principal by joining in a new obligation after his liability is fixed, see Merriken v. Godwin, 2 Del- aware Ch. R. 236. ' Commercial Bank v- Western Re- serve Bank, 11 Ohio, 444; Brown v. Ayer, 24 Ga. 288; Commonwealth v. Miller's Admrs. 8 Serg. and Rawle, 452; Moss V. Pettengill, 3 Minn. 217; Chambers v. Cochran, 18 Iowa, 159; Eice V. Morton, 19 Mo. 263; Bangs v. Strong, 7 HiE, (N. T.) 250; Smith v. Rice, 27 Mo. 505; Davis v. Mikell, 1 Freeman's Ch. R. (Miss.) 548; Newell V. Hamer, 4How. (Miss.) 684; Curau V. Colbert, 3 Kelly, (Ga.) 239; Brown V. Exrs. of.Riggins, 3 KeUy, (Ga.)405; Delaplaine v. Hitchcock, 4 Edward's Ch. 321; Allison v. Thomas, 29 La. An. 732. ' ^ *McNutt V. "Wilcox, 1 Freeman's Ch. R. (Miss.) 116. In Bay v. Tallmadge, 5 John's Ch. 305, Chancellor Kent held that after judgment against bail in a civil case, the relation of principal and sUrety ceased, and the bail was not discharged by time given. The same principle was held in LaFarge v. ■ Herter, 3 Denio, 157, but the decided weight of New York authority is the other way. In Findlay's Exrs. v. United States, 2 McLean, 44, it was held that judgment against the ac- commodation drawer of a bill of ex- change merged the relation of prin- cipal and surety, and that thereafter the only right of the surety was to pay and have subrogation. In Marshall V. Aiken, 25 Vt. 328; McDowell o. Bank, 1 Harrington, (Del.) 369, and Dunham v. Downer, 31 Vt. 249, it was held that the judgment merged the relation of principal and surety, so that at law the surety no longer had any rights as such, but that in equity all his rights remained. In Jenk- ins V. Robertson, 2 Drewry, 351, A as principal and B as surety, were indebted to C. B died, and C, in a creditor's suit obtained a decree 36 ■ THE CONTEACT. thority on this subject. There is no good reason why a surety should not be entitled to the- same rights after, as before, judg- ment. " The recovery of a judgment against the surety does not merge or destroy his character as such, or the relation which he sustains to his prinqipal. Its only eifect is to change the form of the security as between him and the debtor. Merging the con- tract between the creditor and the principal debtor or surety, cannot affect the relation between the principal and surety. This relation is not necessarily created by the contract to which the creditor is a party, but may be created even without his knowl- edge." ^ " The judgment is technically a security of a higher nature, but it is a security for the same debt or duty as the contract on which it is founded." ^ " To give time, or to dis- charge the principal after judgment, would be as injurious to the surety as before judgment. In either case the injury is the same, and why not have the same protection ? "^ In another case the court said: "Had the facts now proved, occurred before this judgment was rendered, they would have opposed a good defense to the recovery of it; and if not availed of in defense, the judgment would have concluded them; occurring after the judgment, they are no more concluded by it than payment, or a release, or any other matter going to discharge it."* After joint judgment against principal and surety, the surety will be discharged by time given the principal,^ by creditor releasing levy on property of principal, and taking from principal bond and mortgage in payment for the debt,* by creditor releasing principal, who is taken in execution, and taking from him a fresh security for the debt.' The same rule prevails where separate judgments are re- covered against the principal and surety.* against his estate. Afterwards C sued * Shelton v. Hurd, 7 Rhode Is. 403, A and took judgment, thereby giving per Ames, 0. J. time: Held, the estate of B was not ^Storms v. Thorn, 3 Barb. (N. T.) discharged. Its character as surety 314; Blazer v. Bundy, 15 Ohio St. 57; was merged in the decree, and all that McCraiy v. Coley, Georgia Decisions, followed was simply an execution of 104; Carpenter v. Devon, 6 Ala. 718; the decree. See, also, on this subject, Crawford v. Gaulden, 33 Ga. 173. ' Dougherty v. Richardson, 20 Ind. 412. ^ La Farge v. Herter, 11 Barb. (N. ' Bangs V. Strong, 4 New York, 315, Y.) 159. per Pratt, J. 'Bales v. Fraser, 6 Man. & Gr. 755. ' Carpenter v. King, 9 Met. 511, per « Manufacturers' and Mechanics' Shaw, 0. J. Bank v. Bank of Pennsylvania, 7 "Trotter v. Strong, 63 lU. 272, per Watts & Serg. 335. Walker, J. SUEETY CONTRACTING AS PEINCIPAl. 37 § 28. Surety, who in terms binds himself as principal, not en- titled to rights of surety. — Wliere a surety binds himself in terms as a principal in the obligation which he signs, he will be held as a principal, and will be entitled to none of the rights of a surety. " There is no rule of law which prohibits a surety from waiving the right which belongs to him as such. Such a waiver has nothing in itself offensive to the policy of the law." The express terms of the obligation, in such case, excludes the idea of suretyship, and the creditor has a right to avail himself of the contract his vigilance has obtained.^ Where three parties signed a joint and several note, the first one adding to his name the word " principal," the other two adding the word " sureties," it was held the one to whose name the word " principal " was attached could not show by parol that he was in fact a surety, and known to be such by the creditor. The court said that if the note had been silent as to who was principal and who surety, the surety- ship might have been shown without contradicting the note, but in the present case, to allow the proof would- be to contradict the terms of the note.^ Several parties signed a note to a bank commencing as follows:, ""We, severally and jointly, all as prin- cipals, promise to pay," and it was held none of them could show they were sureties.' The court said: "Here is an express con- tract that each signer is a principal. Each contracts for himself with the holder that he is a principal; that he will so stand iipon the note. This constitutes apart of the contract with the bank as much as the sum to be paid or the time of payment or the promise to pay anything at any time does, and this fact as to the capacity in which the signer of the note binds himself, may often be as important a ' part of the contract as any other." A principal and several sureties signed a bond, reciting that they all signed " as principals," and nothing appeared on the face of the bond to indicate that any of them were sureties: Held, the sure- ties were estopped by the bond to show they were sureties, and that they were not discharged by time given.* "Where a note 'Picot«. Signiago, 22 Mo. 587; Mc- surety there, but it was denied him, MHlan v. Parkell, 64 Mo. 286. and the court held that both at law '' Waterville Bank ». Redington 52 and in equity, he was concluded by the Me. 466. terms of his obligation. Heath v. Der- ° Derry Bank v. Baldwin, 41 New ry Bank, 44 New Hamp. 174. Hamp. 434. This decision was made * Sprigg r. Bank of Mount Pleasant, at law, and one of the parties filed a 10 Peters, (U. S.) 257, bin in equity, claiming relief as a 88 THE CONTRACT. commenced, " We each as principal, jointly and severally prom- ise to pay," but one of the signers was a surety, and known to the creditor to be such, and time was given to the principal, which would ordinarily have discharged a surety, it was held the surety was not discharged.^ But where, in such a case, the surety added to his signature the word " surety," it was held that he had all the rights of a surety, and was discharged by time given." A surety may also be estopped by his conduct from claiming tbe rights of a surety. A appeared on a note as principal, and B as surety, and in various litigations concerning it for eight years, A professed to be the principal. In the mean time judgments had been recovered against B, by certain of his creditors. In a contest between A and such creditors, it was held that A could not show, to the prejudice, of the creditors, that he was, in fact, surety and B principal on such note.^ § 29. Surety estopped to deny recitals of his obligation. — The general rule is that sureties are estopped to deny the facts recited in the obligations signed by them, and this, whether the recitals are true or false in fact. Having once solemnly alleged the existence of the facts, they cannot afterwards be heard to deny it.* The plaintiif in a replevin suit, as a condition for a continuance granted him, was required to give an additional bond, and in pursuance of such requirement. A, long after it had been taken in the case, signed the original replevin bond to the sheriff, which had been signed by other sureties. In a suit against A on the bond, he set up the defense that the sheriff had no right to take a replevin bond in the suit at the time he. A, signed it, and that the bond was void. The bond on its face imported that it was executed when the suit was instituted, and when the sheriff had a right to take it, and it was held that the surety was estopped to deny that it was taken at that time.' In an action against the sureties in an undertaking purporting to have been given to pro- cure the discharge of an attachment, they will not be allowed to ' Claremont Bank v. Wood, 10 Vt. son, 14 Martin, (La.) 2 N. S. 672; Cor- 582. die V. Burch, 10 Gratt (Va.) 480; Bor- 'People's Bank v. Pearsons, 30 Vt. den v. Houston, 2 Tex. S94; Cecil v. 711. Early, 10 Gratt. (Va.) 198; Cox v. ''Goswiller's Estate, 3 Penn. & Thomas' Admx., 9 Gratt. (Va.) 312; Watts, 200. Lee v. Clark, 1 Hill, (N.T.) 56; State v. * Monteith v. Commonwealth, 15 Lewis, 73 Nor. Car. 138. Gratt. (Va.) 172 ; Duhamp t). Nichol- ^Deckerw. Judson, 16NewTork,439. ESTOPPEL BY EECITALS. 39 show as a defense that no attachment was in fact issued. It is not essential to the validity of such an undertaking that an attach- ment shall actually be issued. Giving an undertaking which re- cites the issuance of an attachment when none has been issued, is conclusive evidence of a waiver of the issuance of the attachment.^ The surety on a receiver's recognizance, which recites that it has been duly acknowledged before a commissioner of the court, is estopped to deny that fact.^ When the bond of a city treasurer recited the fact that he had been elected to that office, and the sureties on the bond were sued for money received by him while acting in that capacity, it was held that they could not deny that he had been elected. The court said, that by signing the bond they had enabled him to get the money of the city, and it was too late for them to deny his election.* When the bond of a borough collector recited that he was duly elected, it was held that the sure- ties therein could not show that the office had been abolished be- fore his election.* Where the condition of a bond recited that A was guardian, etc., it was held that neither A nor the sureties on his bond could deny that he was guardian, nor set up as a de- fense any supposed irregularity in obtaining the appointment." § 30. Surety estopped to deny recitals of his obligation. — In an action against as surety for S, in a replevin bond conditioned for the re-delivery of property attached to abide the final order of the court; he pleaded that at th6 time of, and prior to the insti- tution of the original suit by attachment, S, the defendant therein, and the principal in the replevin bond, was dead. It was held, that by signing the bond which purported to be signed by S as a co-obligor, was estopped to deny that S had signed it.° The official bond of an executor was made payable to four justices, one of whom was not a member of the court at the time: Held, that the surety, having executed the bond, was estopped to deny that any of those named in the. bond as justices were such.'' So where the bond of a guardian recites that the principal has been appointed guardian, the sureties therein are estopped to ' Coleman v. Bean, 1 Abbott's Rep. * Seiple v. Borough of Elizabeth, 3 Omitted Cas. (N.T.) 394. Butcher, (N. J.) 407. 'Driscoll V. Blake, 9 Irish Ch. R. = Fridge «. The State, 8 Gill & Johns. 856. t (Md.) 103. ' City of Paducah ■». Cully, 9 Bush, « Collins v. Mitchell, 5 Fla. 864. (Ky.)323; to same effect, see People 'Franklin's Admr. v. Depriest, 13 V. Jenkins, 17 Cal. 500 Gratt, (Va.) 257. 40 THE CONTEACT. deny the jurisdiction of the court making the appointment.' The sureties on the bond of an Indian agent, which recites his ap- pointment as such, are estopped to deny that fact." The bond given by a coroner upon assuming the duties of sheriff, recited that the sheriff was dead, and that thereby the coroner had be- come sheriff, and it was lield that the sureties on the bond were estopped to deny those facts.' A guaranty purported to have been made in consideration of one dollar, but the actual consid- eration was that moving between principal and creditor. The guarantor attempted to prove that the one dollar had not been paid: Held, the parties in such a case are taken to have agreed that the actual consideration shall be estimated in money, at the sum expressed as a coasideration in the contract, and where the parties have agreed that a legal consideration shall assume such a form, for the purposes of the contract, they are estopped from denying, in an action on the contract, that it was such in fact.* But where a contract for the delivery of sheep recited that $1,000 had been paid by the purchaser, and it was signed by the seller and certain sureties for him, in a suit on the contract it was held that the fact of the payment of the money might be contradicted. The court said: " We are of opinion, as it was stated to be a part of the consideration for the execution of said writing, that the VTriting is not conclusive upon the subject. The truth may be inquired into." ° § 31. Surety estopped to deny recitals of his obligation — Reason why — When not estopped. — The holder of the bond of a corporation guarantied it as follows: " I hereby guaranty the due payment of the money secured thereby." In a suit against him on the guaranty, the guarantor offered to show that the bond was invalid, and the corporation had no authority to make it; but it was held that he was estopped to show those facts. The court said : " The guaranty of the payment of the bond by the defend- ant imports an agreement or undertaking that the makers of the bond were competent to contract in the manner they have, and that tlie instrument is a binding obligation upon the makers." * In an action of covenant on a sealed guaranty of a lease, it was ' Norton v. Miller, 25 Ark. 108. * Redfield v. Haight, 27 Conn. 31. ''Bruce v. United States, 17 How. ^g^gpe ^ Porney, 17 Ind. 385. (U. S.) 437. «Remsen v. Graves, 41 New York, ' AUbee v. The People, 22 111. 533. 471, per Mason, J. ESTOPPEL BY EECITALS. 41 objected that there was no proof that one of the lessors executed the lease, but it was held that the guarantors were estopped from denying the execution of the lease by the lessees. The court said: " Entering into this guaranty was an acknowledgment by the guarantors that the lease was duly executed by both lessees.'" In the cases already referred to on this subject, the question came up in a suit against the surety, on the obligation signed by him. The facts recited were, in most instances, within the knowledge of the surety, aiid the principal had usually acted in the capacity which the obligation recited he occupied, and derived a benefit therefrom, and become a defaulter therein. In such cases the issue is not the right of the principal to fill the position, but his right to retain money received by him while filling the same, and which belongs to others. To such cases the principles of equita- ble estoppel, as well as the rule that a man cannot aver against his own deed, apply. When the' issue is as to the right of the principal to fill the position, different principles will apply. A person was appointed to fill an office created by a city, and gave an official bond with sureties, which recited that he had been ap- pointed collector of assessments for street improvements, and was conditioned that he should pay the city treasurer all moneys which he might receive as such collector. The city had, in fact, no authority to create the office, biit the court held the sureties were estopped ^o deny that the collector was an officer de facto? The distinction above referred to was noticed by the court as follows: "The action is not to enforce upon him the execution of the duties of his office, or to recover damages for his failure to perform them. In such a case both he and his sureties might answer and say, perhaps successfully, there was no such office, and he was without legal power. But here the suit is founded upon an actual, complete execution of the duties, of the office he claims to fill. He is fvm,otus officio, as collector of taxes. The money he has is the money of the city, which he has no right to retain, and which his sureties on the whole case, just as it is, have stipulated that he shall pay over to the city treasury." § 32. When surety not estopped by recitals of obligation signed by him. — A surety is not in all cases estopped to deny the facts recited in the obligation signed by him. Thus, where ■Otto V. Jackson, 35 111. 349. ' Hoboken ». Harrison, 1 Vroom. (N. J.) 73. 42 THE CONTEACT. the bond of a township recited that the township officers execut- ing the sanae, had been authorized, as the law required, to issue such bond, in a suit on the bond it was held the township might show that no such authority had been given. The court said that the doctrine that a party is estopped from contradicting the re- citals of his own deed, is applicable only where the deed is admit- ted to be the act of such party.^ A court had appointed a guardian for a minor, and while such appointment was unre- voked, appointed another who gave a bond with surety, reciting that he had been appointed guardian. In a suit on this bond against the surety, it was held that the appointment of the last guardian was absolutely void, and that the surety might show the fact.° The court said: "It is certainly true that where a , party makes a distinct and clear recital of any fact in a deed or other valid obligation, he will be estopped from denying the truth of such recital. But this doctrine pre-supposes a valid legal ob- ligation, and we do not know any authority, and reason is cer- tainly against the proposition, that a party is estopped, by any re- cit^al contained in an instrument, from showing that the instru- ment containing it is absolutely null and void." An appeal bond was conditioned for the prosecution of an appeal from the judg- ment of a justice of the peace to the Anne Arundel County Court. There was, in fact, no such court. Held, the sure- ties were not estopped to deny the existence of the court by the recital in the bond.' The court said: "Whether a court exists or not, is something more than a mere question of fact, as to which parties may agree or be concluded by admis- sions. It must depend on the constitution or laws, and when the court can see that the supposed tribunal is not known to these it must so decide, no matter what the parties may have admitted by estoppel or agreement." A defendant was taken under a bail writ, and the sheriff by mistake took a bond for the prison bounds, which recited the defendant's imprison- ment to have been under a ca. sa. Held, the bond was void, and that the surety was not estopped to show there was no ca. sa. The grounds of the decision are set forth as fol- ' Hudson ». Inhabitants of Winslow, « Tucker ». The State, 11 Md., 322, 6 Vroom, (N. J.,) 437. ' per Tucker, J. 'Thomas v. Burrus, 23 Miss., 550, per Yerger, J. NEGOTIABILITY OF GUAEAITTT. 43 lows: "It is a general rule of law, and a correct 'one too, that a man cannot aver against his own deed, but that is where he has alleged some particular fact within his own knowledge and which forms a part of the consideration for his undertaking; and that is the whole extent to which the eases relied on go. But the principle cannot be extended to an allegation coming from the other party, and which can be necessarily known only to him, although contained in the recital of a deed made by the defend- ant. * The person supposed to be estopped is the very person imposed upon. * It is to be observed that this is an allegation coming from the sheriff and not from the defendant. He could not find under what authority the sheriff acted but by his own representation"; a person is only estopped from denying his own acts, but not the acts of another." ■* § 33. Cases holding guaranty of note negotiable. — There is an irreconcilable conflict of authority as to whether or not a guaranty is negotiable, and when, if at all, it passes by an as- signment of the original obligation, and there is no decided pre- ponderance of authority either way. A stranger to a negotiable promissory note indorsed it in blank when it was made. The payee transferred the note, and the holder wrote a guaranty above the stranger's indorsement and brought suit upon it: Held, he was entitled to recover." The court said: "The guaranty is general, specifying no person to whom the guarantor undertakes to be liable, and is upon the back of a negotiable instrument. In such case the guaranty runs with the instrument on which it is written and to which it refers, and partakes, of its quality of negotiability, and any person having the legal interest in the principal instrument, takes in like manner the inci- dent, and may sue upon the guaranty." A guaranty on the back of a negotiable promissory note, signed by the payee, was as follows: "I guaranty the payment of the within note." Held, the guaranty passed with the note, so that any subse- quent lona fide holder, as well as the first holder after the guaranty was made, might sue on the guaranty.' These cases hold 'Maier V. Bagwell, 3 McCord, Law "Partridge v. Davis, 20 Vt. 499. To (So. Car.,) 429, per Nott, J. the same effect see Killian v. Ashley, = "Webster v. Cobb, 17 111. 459. See, 24 Ark. 511. See, also, Studabaker v. also, on same point, Heaton v. Hul- Cody, 54 Ind. 586. bert, 3 Scam. (111.) 489. 44 THE CONTEACT. that where -the guaranty is general, specifying no particular person to whom it runs, it is negotiable and passes with the note, and may be sued on at law, in his own name, by any subsequent holder of the note. It has been held that where the guaranty of a promissory note is a separate instrument from the note, the title to it will pass by delivery with the note for a good consideration, and this, without any written assignment of the guaranty.* It has likewise been held that when a guaranty is written on a prom- issory note, and the note is transferred, the sale and delivery of the note with the guaranty upon it furnishes prvmafacie evidence of a sale of the contract of guaranty, and that the holder of the note is the owner of the guaranty." A general guaranty of pay- ment of a promissory note which named no .person as the party guarantied, was not written on nor attached to the note, and it was held that it might be enforced at law by any one who advanced money upon it declaring on it as a promise to himself. But it was further held, that the guaranty not being attached to nor a part of the note, was not negotiable, and an action could only be brought upon it in the name of the person in whose hands it first became available. The court said that if it had been attached to the note, it might have been treated as an indorsement, and would have been negotiable.' "Where a guaranty written on a promis- sory note named the person guarantied, and proceeded, " I here- by guaranty the payment and collection of the within note to him or bearer," it was held that any subsequent holder of th6 note might sue on it in his own name.* The court said, it was a new note for the payment of money, and by its terms negotiable. A note was drawn and signed by H, payable to N, and indorsed by If, the latter being an accommodation indorser for H, who was the principal. E guarantied the note generally on its back, and the note was discounted by a bank, and the bank sued E on his guaranty. Held, the bank need not prove affirmatively that the contract of guaranty was made with it. As N indorsed for the accommodation of H, and the bank was the first holder for value, the law implied that the guaranty was made to it. The court ' Gould s.EUery, 39 Barb.(N.Y.)163. haustive opinion, contended that tlie ' Cooper V. Dedrick, 22 Barb. (N. T.) guaranty in this case was negotiable, 516. but the majority of the Court of Errors 'McLaren v. Watson's Exrs., 26 held otherwise. "Wend. 425, per Walworth, C. Sen- *Ketchell v. Burns, 24 Wend. 456, ator Verplanck, in an able and ex- per Nelson, C. J. GTJARANTT PASSES TO ASSIGNEE OE DEBT. 45 said, that the guaranty was not distinguishable from a general letter of credit, on which an action might be maintained in the name of the person who gave the credit on the faith of it.' § 34. Cases holding that guaranty of debt passes to assignee of debt. — "When the guaranty is not of the payment of a note, it has also been held that it passes by a transfer of the debt as an incident thereto. Thus, where a party by a separate covenant guarantied the payment of rent and the performance of the cov- enants of a lease, it was held that the guaranty run with the land and passed to the grantee of the reversion, who might sue the guarantor in his own name for a breach of the covenant. The court said: " When the thing to be done or omitted concerns the lands or estate, that is the medium which creates the privity be- tween the plaintilf and defendant." " A being the owner of a bond and mortgage securing the same, by writing on the back of the mortgage, assigned the bond and mortgage to B, and the as- signment then proceeded, " and hereby guaranty the collection of the within amount as it becomes due." B assigned the bond and mortgage to C, the assignment to saying nothing about the guaranty. sued A on the guaranty in his own name at law, and it was held he had a right to maintain the suit, even though the guaranty was not, in terms, assigned to him. " The transfer of the debt to him carried with it as an incident all the securities for its payment." ^ It has been held that parol evidence is com- petent to rebut the presumption that a judgment against an indorser passes by an. assignment of a judgment against the principal when nothing is said in the assignment about the judg- ment against the indorser.* The state of Yirginia guarantied the payment of interest on coupon bonds issued by the city of Wheeling, the guaranty being that the state guarantied the " punctual payment of the interest." It was held that if the guaranty was not transferable at law, it was in equity, and an interest passed in equity to each successive holder of the bond or' coupon. The guaranty is an accessory of the bond or coupon, and follows and adheres to it in equity, and the right to enforce the guaranty must be determined by the right to demand payment ' Northumberland Bank v. Eyer, 58 ' Craig v. Parkis, 40 New York, 181, Pa. St. 97, per Sharswood, J. per Lott, J. 'Allen V. Culver, 3 Denio, 284, per *Bank v. Fordyoe, 9 Pa. St. 275. Jewett, J. 46 THE COMTEACT. of the bond or coupon.^ H and being partners, H sold out his interest in the firm property to O, who agreed to pay the firm debts, among them a debt due to the plaintiff. The defendant guarantied the performance of this agreement. The plaintiff's debt not having been paid, H assigned to him his interest and claim under the agreement and the guaranty: Held, the plaintiff was entitled to recover against the defendant on the guaranty, which having been made for his benefit, he could adopt and enforce." Under a similar state of facts, except that H did not assign the agreement and guaranty to the plaintiff, it was held that there was no privity between the plaintiff and the de- fendant, and the plaintiff could not recover against the defendant.^ § 35. Cases holding guaranty of note not negotiable. — The payee of a negotiable promissory note indorsed it as follows: " I guaranty the payment of the within note without demand or no- tice," and sold it to A, who sold it to B, and B sued the guaran- tor on the guaranty: Held, the guaranty was not negotiable, and the action could not be maintained.* Where a stranger to a note indorsed it in blank, and added to his name the word " holden," it was held that this constituted him a guarantor, but that the guar- anty was not negotiable, and could be enforced by no one except the person with whom it was made.^ A negotiable promissory note and a guaranty of its payment by a stranger indorsed thereon, were made at the same time: Held, the guaranty was not nego- tiable, and did not pass by a transfer of the note.^ "Where a guaranty was made on the back of a promissory note after the note was delivered, it was held that it did not pass by an assign- ment of the note.^ A negotiable promissory note was signed by A as maker. Underneath the note was written the following guaranty: "We will guaranty the payment of the above note given to (A) for forty-two hundred and eighty dollars:" Held, , the guaranty was not negotiable, not being so by its terms, and ■ Arenta v. The Commonwealth, 18 » Irish v. Cutter, 31 Me. 536. Gratt, (Va.) 750. • Tinker v. McCaiiley, 3 Mich. »ClaflinB.Ostrom,54]SrewTork, 581. 188. ' Campbell v. Lacock/40 Pa. St. 448. ' How v. Kemball, 2 McLean, 103. * Springer v. Hutchinson, 19 Me. In LbtI v. Mendell, 1 Duvall (Ky.) 77, 359. To the same effect, see Ten it was held that only the equitable Eyck V, Brown, 3 Pinney (Wis.) 452, title to a guaranty on the back of a and Turley v. Hodge, 3 Humph, note passed by an assignment of the (Tenn.) jS. note. GtTAEANTT ON NOTE TEANSPEES TITLE. 47 that it could not be sued on by any one except the person to whom it was originally given." § 36. Cases holding guaranty of bond not negotiable — When guaranty on back of note transfers title to note — Obligation of surety cannot be sold alone. — A party guarantied the payment of a certain bond and mortgage " to Arthur Childs, the present owner and holder of said bond and mortgage, his executors and administrators." Held, the guaranty was a personal one, confined to Childs, his executors and administrators, and that the assignee of the bond and mortgage could not maintain an action on the guaranty." It has also been held, that a covenant of guaranty, written on the back of a bond, is no part of the bond, and does not pass by an assignment of it.' A guaranty on the back of a negotiable promissory note signed by the payee, although it may not itself be negotiable, is a sufficient indorsement of the note to transfer the title to it.* Principal and surety signed an obliga- tion, judgment was recovered against the holder of the obligation, and at an execution sale the debt due by the surety was sold, the principal being insolvent. It was held that the sale was invalid and that the obligation of a surety could not be sold separate from that of the principal. The court said the obligation of the surety was accessory to that of the principal and could not be separated from it.' 'Smith V. Dickinson, 6 Humph. *Myrick ». Hasey, 27 Me., 9. To (Tenn.)261. same effect, see Heaton v. Hulbert, 3 ^ Smith V. Starr, 4 Hun., (N. Y.,) 123. Scam. (111.,) 489. 'Beckley ». Eckert, 3 Pa. St., 292. ^Andrus v. Chretien, 7 La. 0. S. (4 Curry,) 318. CHAPTER II. OF THE STATUTE OF FEAUDS. Section. Text of the statute of frauds. General observations . . 37 Effect of the -words "no action shall be brought " . . .38 Meaning of the words " any spe- cial promise " . . . .39 What included in the words " debt, default or miscarriage " 40 The words "of another " contem- plate the present or future pri- mary liability of a principal . 41 If there is no remedy against a third party, the promise need not be in writing. Leading case 42 When no liability incurred by third person, promise need not be in i writing. Liability of principal need not be express . 43 When party for whom promise is made cannot become liable, promise need not be in writing 44 When promise to indemnify with- in the statute. Principles in- volved 45 When promise to indemnify need not be in writing; instances . 46 When promise to indemnify must be in writing . . . .47 If original debt extinguished or novated, promise not within the statute 48 When promise to pay out of pro- ceeds of debtor's property not within statute . . .49 Creditor relinquishing lien which does not inure to benefit of promisor, does not take prom- ise out of statute . . .50 When transaction amounts to a Section. purchase of debt or lien by prom- isor, promise not within statute 51 When promisor wh* is debtor to third person agrees to pay his debt to creditor of such third person, promise not within stat- ute 52 When promise is in effect to pay promisor's own debt, it is not within statute, although it inci- dentally guaranty debt of an- other 53 When promisor previously liable, promise not within statute . 54 New consideration passing be- tween promisee and promisor wiU not alone take promise out of statute 55 Promise not within statute when main object is to benefit promis- or himself; observations . 56 Promise of del credere agent not within statute . . .57 Promise not within statute unless made to party to whom princi- pal is liable . . . .58 False representations of another's credit not within statute . .59 Promise in substance to pay debt of another, no matter what its form, is within statute . . .60 Promise to answer for future lia- bility of third party, is within the statute . . . .61 Promise within statute if any credit given to third person . . 62 Ik When promise is original or collat- eral, cases holding it original . 63 Whether promise original or col- (48) TEXT OF STATUTE. 49 Section. 1 lateral is question of fact. Evi- dence. Cases holding promise collateral 64 If original promise in writing, ver- bal subsequent promise, takes case out of statute of limitations. Verbal guaranty sufficient to support verbal account stated . 65 The form of the writing . . 66 The whole promise must appear from the writing . . .67 Whether the consideration must appear from the writing . . 68 Reasons why the consideration should appear from the writ- ing 69 Section. When the consideration sufficient- ly appears from the writing When consideration does not suf- ficiently appear, or consideration appearing is insufficient; in- stances When writing ambiguous it may be explained by parol evidence When several papers may be read together to express considera- tion for a promise Whether guaranty of note must express consideration Signature by party to be charged Signature by agent 70 71 72 73 74 75 76 Pleading 77 § 37. Text of the statute of frauds — General observations. — It was not necessary at common law that the contract of a surety or guarantor should be in writing in order to charge him. This being so, the Statute 29, Charles II., Chapter 3, commonly called the Statute of Frauds, was passed. The fourth section of that statute, so far as pertinent to the subject under consideration, was as follows, viz.: "l^o 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 such, action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be -charged therewith, or by some person thereunto by him lawfully authorized." The object of this statute was the "prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjitry," and in certain cases, which from their nature particularly demanded it, the substi- tution of the certainty of written, for the uncertainty of unwritten, evidence. It was a wise and salutary enactment, and has been in terms, or with more or less modifications, generally re-enacted in the United States. Many decisions have been rendered on every portion of the Statute of Frauds, and among them will be found great conflict of authority. Perhaps the clearest method of presenting this subject will be to commence with the first words of the statute as above given, and proceed seriatim to the last, and this course will be pursued. 4 §0 THE STATUTE OF FEAUDS. § 38. Effect of the words " no action shall be brought."— The Statute of Frauds does not provide that the contract to an- swer for another shall be illegal or void if not in writing. It says " no action shall be brought." The contract is just as legal since the enactment of the statute as it was before, but no action can be brought to enforce it. In most cases this amounts to the same thing as if the contract had been declared illegal, but in other cases it does not. When the contract has been entirely executed on both sides, the statute will not in any manner affect the relations of the parties.' Money paid by a surety or guarantor in pursuance of an unwritten promise cannot be re- covered back by him, although he could not have been compelled by law to pay it, and in such case, the principal will be obliged to reimburse the surety or guarantor for the money thus paid.' By virtue of the authority of courts over their own officers, they will sometimes enforce an unwritten agreement by their officers which could not otherwise be enforced, because of the Statute of Frauds. Thus the attorney for the defendant in a case, in con- .sideration of the plaintiff staying proceedings therein, agreed to compromise the action and give his two promissory notes in pay- ment. This he afterward refused to do, and the court entered a rule upon him compelling him to carry out his agreement. The •court said: "Even supposing the undertaking to be void by the -.Statute of Frauds, this court may nevertheless exercise a sum- mary jurisdiction over one of its own officers, an attorney of the ■court. The undertaking was given by the party in his character of attorney, and in that character the court may compel him to perform it. An attorney is conusant of the law, and if he give an undertaking which he knows to be void, he shall not be -allowed to take advantage of his own wrong, and say that the undertaking cannot be enforced.'" As the prohibition is against the remedy, the courts of a country in which the statute prevails, will not enforce an unwritten contract of suretyship or guaranty made in another country, which was perfectly valid and enforce- ' Stone V. Dennison, 13 Pick., 1 ; Gutin, 4 Bing. N.C.445; Andrews e. 'Lord Bolton v. Tomlin, 5 Adol. & Ell. .Tones, 10 Ala. 400; Watrousv. Chalk- 856; Mushat v. Brevard, 4 Dev. (Nor. er, 7 Conn. 224; Craig v. Vanpelt, 3 Car.) 73. J. J. Marsh, (Ky.) 489. ' Shaw V. Woodcock, 7 Bam & Cres. » In re Greaves, 1 Cromp. & Jar. 73; McCue v. Smith, 9 Minn. 252; 374, n.; see, also, Evans v. Duncan,! Crane v. Gough, 4 Md. 316; Pawle v. Tyrw. 283. SPECIAL PEOMISE. 51 able in the country where the contract was made.' This is upon the principle that while the validity and binding force of a con- tract depends upon the law of the country in which it is made, the remedy is always governed by the law of the country in which the action is brought. When a promise is, as to the thing ^ promised, partly within and partly not within the Statute of Frauds, if the parts are so connected that the contracting parties must reasonably be considered to have contracted with reference to the performance of the whole, or a distinct promise cannot reasonably be made out as to the portion not within the statute, no action can be brought on any portion of the contract;' but where the portion of the promise which is not within the statute can be separated from that which is, an action, may be sustained upon the portion not within the statute.' § 39. Meaning of the -words " any special promise.'' — With reference to the kind of promise which the statute provides shall be in writing, the words are " any special promise." The inten- tion was by these words to confine the statute to actual promises or promises in fact made, and so it has been interpreted.' Prom- ises implied by law are not within the operation of the statute. § 40. What included in the words " debt, default or miscar- riage." — The liability which the statute contemplated, was for the " debt, default or miscarriage of another." These words " debt, de- fault or miscarriage," include torts of the principal as well as breeches of contract by him, and apply to every case in which one person can become responsible for another. It seems at one time to have been considered, that if the principal was not chargeable on a contract, but was only liable in tort, the promise to answer for him would not be within the statute, ° but all doubts on this sub- ject have been set at rest, and it is settled that a promise to an- swer for the tort of another is within the statute. Thus, where ' Leroux v. Brown, 12 Com. B. 801 see, also, Huber v. Sterner, 2 Scott, 804. "Chater».Becket, 7Term. E. 201 Thomas v. Williams, 10 Barn & Ores Thayer v. Roct, 13 Wend. 53; erbee, 11 Allen, 861; Wetherbee v. Potter, 99 Mass. 354; Dock v. Hart, 7 Watts & Serg. 172. *Pike V. Brown, 7 Gush. 133; Sage V. Wilcox, 6 Conn. 81; Goodwin McMuIlen v. Riley, 6 Gray, 500; Dyer Gilbert, 9 Mass. 510; Allen r. Pryor, V. Graves, 37 Vt. 369. 8 A. K. Marsh, (Ky.) 305. ° Wood V. Benson, 2 Cromp. & Jer. ' Buckmyr v. Damall, 2 Ld. Raym. 94; Id. 2 Tyrwh. 93 ; Rand v. Math- 1085; see, also, Reed v. Nash, 1 Wils. er,llCush. 1; see, also, Hess v. Fox, 305. 10 Wend. 486; Trowbridge v. Weth- 52 THE STATTJTB OF FEAUDS. one person, without the license of another, had ridden snch other's horse and thereby caused its death, it was held that a promise by a third person to answer the damage caused thereby, in consider- ation that the owner of the horse would not bring an action against the person causing its death, was within the statute, and no action could be brought upon it unless it was in writing. The court said: "The wrongful riding the horse of another without his leave and license, and thereby causing his death, is clearly an act for which the party is responsible in damages, and therefore, in my judgment, falls within the meaning of the word ' miscar- riage.' " ' These words have been variously commented upon by different courts. It has been said by some that the words " debt " and " default," both referred to a liability accruing upon a con- tract; the word " debt " to such as is already incurred, and the word " default " to such as may be incurred in the future: " Of the word " miscarriage " it has been said: " Now the word ' mis- carriage' has not the same meaning as the word ' debt ' or ' default; ' it seems to me to comprehend that species of wrongful act for the consequences of which the law would make the party civilly re- sponsible." ' Whatever meaning may be attached to any one of these words, the three together cover every case in which a surety uv guarantor can become responsible in a civil action for another. § 41. The words "of another," contemplate the present or future primary liability of a principal. — The WOrds, "of another person," have given rise to a vast number of decisions. As said by an able court: "The cases on this branch of the Statute of Frauds are so numerous that it would, be a difficult task to review them; and the distinctions as to cases which are or are not within the statute are so nice, and often so shadowy, that it would be still more difficult to reconcile them."* The result of the authorities is that in order to bring the promise within the prohibition of the statute, it must be " collateral " to a liability on the part of a principal. In other words, there must at the time the promise is made, be an actual primary liability of a ' Eirkham v. Marter, 2 Bam. & Mountstephen v. Lakeman, Law Rep. Aid. 613, per Abbott, C. J.; see, also, 7 Q. B. 196, per Willes, J. to same effect. Turner v. Hubbell, 2 ' Kirkham v. Marter, 2 Bam. and Day, (Conn.) 457. Aid. 613, per Abbott, C. J. 'Castling v. Aubert, 2 East, 325; *ShawC. J., in Chapin v. Lapham, per Lord EUenborough ; see. also, 20 Pick. 467. WHERE NO EKMEDY AGAINST PEINCIPAL. 53 principal to the promisee which continues after the making of the promise, or there must be contemplated, as the basis of such promise, the future primary liability of a principal. The founda- tion of the contract of suretyship and guaranty, is the primary hability of another. In order to a clear and full understanding of the above general statement of the result of the authorities on this subject, a more detailed examination of such authorities will be necessary. § 42. If theie is no remedy against a third party, the promise need not be in writing — Leading case. — A leading and celebra- ted case on this subject is reported as follows : " Declaration — that in consideration the plaintiff would deliver his gelding to A, the defendant promised that A should re-deliver him safe, and ev- idence was given that the defendant undertook that A should re- deliver him safe; and this was held a collateral undertaking for another, for where the undertaking comes in aid only to procure a credit to the party, in that case there is a remedy against both, and both are answerable according to their distinct engagements; but where the whole credit is given to the undertaker, so that the other party is but his servant, and there is no remedy against him, this is not a collateral undertaking. But it is otherwise in the principal case, for the plaintiff may maintain detinue upon the bailment against the original hirer, as well as assumpsit upon the promise against the defendant. Et per cur; if two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ' if he does not pay you, I will,' this is a collateral un- dertaking, and void without writing, by the Statute of Frauds. But if he says, ' let him have the goods, I will be your paymas- ter,' or ' I will see you paid,' this is an undertaking as for him- self, and he shall be intended to be the very buyer, and the other to act but as his servant." ' The principle here announced, that if there is "no remedy" against the third person, the' promise is original and need not be in writing, has been applied to a great variety of circumstances. § 43. When no liability incurred by third person, promise need not be in ■writing — Liability of principal need not be ex- 'Buokmyr o. Darnall, 1 Salt. 27; ject, see opinion of Willes, J., in same case reported 6 Mod. '248, and 2 Mountstephen v. Lakeman, Law Eep. Lord Eaym. 1085. For a review of 7 Q. B. 196. this case, and generally on this sub- 64 THE STATUTE OF FKATJDS. press. — "When no liability, present or prospective, is incurred by a third person, that is, wlien there is no principal, the Statute of Frauds does not apply. Thus, where A brought an action for assault and battery against B, and the case was about to be tried, and 0, in consideration that A would withdraw his record, ver- bally promised to pay him iifty pounds and costs : Held, the promise of was not within the statute.' The ground upon which the decision was put is thus stated by^the court: "Johnson [B] was not a debtor; the cause was not tried; he did not ap- pear to be guilty of any debt, default or miscarriage; there might have been a verdict for him, if the cause had been tried, for any- thing we can tell; he never was liable to the particular debt, damages or costs." So where a party promised, in consideration of the widow of an intestate, permitting him to be joined with her in the letters of administration, that he would make good any deiiciency of assets to pay debts, it was held the statute did not apply." On the same principle, where goods are furnished to a person gratuitously, a verbal promise of a third person to pay for them is binding.' Wliile there must be a liability on the part of some one to which the liability of the promisor is collateral, such liability need not be express; it is sufficient if it is implied by law.* In all cases where the promise is to answer for the tort of the principal, it is manifest that the liability of the principal is implied by law. § a. When party for 'whom promise is made cannot become liable, promise need not be in writing. — A promise to answer for a party not legally competent to contract, or not answerable for his wrongful acts, is not within the Statute of Frauds, as to any matter within such disability. There is in such case no liability on behalf of any one to which the promise is collateral. It is therefore an original promise, and need not be in writing.' Thus A procured B to advance money to pay for work in the garden of an infant. B sued A for the money, and the question was as to whether the evidence was sufficient to sustain the verdict. Al- ' Read v. Nash, 1 Wils. 305, per Lee, er a promise to answer for a married C. J. woman need or need not be in writing:, ^Tomlinson v. Gill, Amb. 330. see Connerat e. Goldsmith, 6 Ga. 14; ' Loomis V. Newhall, 15 Pick. 159. White v. Cuyler, 1 Esp. 200; Id. 6 * Redhead ». Cator, 1 Starkie, 12; Term R. 176; Darnell i>. Tratt, 2 Car. Whitcombv. Kephart, 50 Pa. St. 85. & P. 82; Kimball v. Newell, 7 Hill, ' As bearing on the questioij wheth- 116. WHEEE PEINCIPAL NOT LIABLE. 55 though not strictly necessary to the decision of the case, one judge said: " The infant was not liable, and therefore it could not be a collateral understanding. It was an oi-iginal undertaking of the defendant to pay the money." ' A father requested a merchant to assist his minor son in business, and promised verbally to in- demnify him against any loss he might incur in so doing, and it was held the promise need not be in writing. The court, after saying that the son was a minor and not liable for the debt, pro- ceeded: "The undertaking and promise of the defendant, there- fore, was not collateral to any promise of the son, "but was sepa- rate, independent and original." ^ A tailor furnished an infant ward with a frock coat, without the order of the guardian, but the guardian afterwards, in consideration of indulgence, verbally promised the tailor to pay for the coat. Held, the guardian was lia- ble. The court, after saying that the ward was not liable for the price of the coat, said: "the promise of the defendant [the guardian] was original, and binding on him." ' A wife, whose husband had died, leaving her his estate for life, remainder to his nephew, her- self died, leaving particular directions as to her funeral. These directions a friend of the family undertook to see carried out, and bought certain articles for that purpose, telling the merchant ver- bally that the estate of the husband would pay for them, and if it did not, she would. Held, the estate of the husband was not lia- ble for the articles thus purchased, and such friend was liable on her verbal promise. The court said: " When no action will lie against the party undertaken for, it is an original promise." * 'Foster, J., in Harria ». Huntbach, must be in writing, even though it was 1 Burrow, 373. a debt which the son could not be co- 'Shaw, C. J.,in Chapin «. Lapham, ercedtopay. The decision was placed 20 Pick. 467. The same principle was upon the ground that the contract of appKed where a father promised to pay the minor was not void, but voidable, for a substitute in the army for his mi- and was valid till avoided, etc. Nei- nor sou who had been drafted; see ther the preceding case of Chapin v. Downey v. Hinchman, 25 Ind. 453; Lapham, 20 Pick. 467, in the same see, also, Duncombe v. Tickridge, court, nor any of the cases herein cited Aleyn, 94. on this subject, were referred to or no- ' Roche V. Chaplin, 1 Bailey, (So. ticed. The cases referred to in the Car.) 419, per Johnson, J. In Dexter text seem to be founded on much tha ,». Blanchard, 11 Allen, 365, the Su- better reason, and are more in harmo- preme Court of Massachusetts decided ny with the cases on other phases of expressly that the verbal promise of a this subject. father to pay the debt of a minor son, * Mease v. Wagner, 1 McCord, was within the Statute of Frauds, and (So. Car.) 395, per Huyer, J. See, 66 THE STATUTE OF FEAUDS. ^ 45. When promise to indemnify within the statute — Principles involved. — With reference to whether a promise to indemnity a person from loss in consequence of such person doing an act or as- suming an obligation is within the statute, no general rule which will reconcile all the cases can be laid down. A mere promise of indemnity which is not collateral to any liability on the part of another, either express or implied, is not within the statute, and such a case illustrates the rule that when there is no principal the promise need not be in writing. On the other hand, when tlie promise to indemnify is in fact a promise to pay the debt of another, then clearly such promise is within the statute, and the fact that it is in form a promise to indemnify will make no differ- ence.' These propositions are correct in principle and are fully sustained by authority. Many cases do not fall plainly under either head, and the confusion in the authorities has chiefly arisen from not keeping the distinction between the two cases clearly in mind, or from the application of these recognized principles to different states of fact. Great stress has often been laid upon the word " indemnity, " when in fact none should be given to it and the actual transaction should be carefully scanned to ascertain the true nature and bearings of the promise. The law on this subject has been thus stated by a celebrated judge: " Now it has been laid down that a mere promise of indemnity is not within the Statute of Frauds, and there are many cases which would exemplify the correctness of that decision. On the other hand, an under- taking to answer for the debt or default of another, is within the Statute of Frauds, and no doubt some cases might be put where it is both the one and the other: that is to say, where the promise to answer for the debt or default of another would involve what might very properly and legally be called an indemnity. Where that is the case, in all probability the undertaking would be con- sidered as within the Statute of Frauds if it were to answer for the debt or default of another, notwithstanding it might also be an indemnity." ' § 46. When promise to indemnify need not be in ■writing — Instances. — A promise to indemnify a party against loss if he also, Drake v. Flewellen, S3 Ala. haustive opinion of Comstock C. J., in 106. Mallory v. Gillett, 21 New York, 412. • Carville ». Crane, 5 Hill, 483: See » Per Pollock C. B. in Cripps v. generally, on this subject, the ex- HartnoU, 4 Best & Smith, 414. PROMISE TO INDEMSriFT. 57 will commence or defend a suit, has been held not to be within the Statute of Frauds. As where the indorser of a dishonored bill of exchange verbally promised to indemnify a subsequent indorsee against costs if he would bring an action against the acceptor, it was held the promise was not within the statute." A promise to indemnify a party if he will commit a trespass in order to raise a question of title, has been held not to be within the statute. The court said: " The promise was not to indemnify for the de- fault of another; but was made to the plaintiif himself for an act to be done by him as the servant of the defendant below. It was an original understanding, and not a collateral promise.'" So, also, a verbal promise to indemnify an occupier of land if he will resist a suit of the vicar for tithes, has been held not to be within the statute.' An attorney authorized a distress for rent due his client, and verbally promised to indemnify the party ex- " ecuting the distress warrant from damage by reason of the goods being privileged from distress. Held, the promise to indemnify was not within the statute.* A party agreed to pay a certain sum annually to certain trastees of a church toward the support of a minister. The minister, for a consideration, promised to indem- nify the party against loss by reason of such agreement. Held, the promise was not within the statu te.° "Where A being bound to indemnify B in a certain civil suit in which he was arrested, requested C to become special bail for B, and promised to indem- nify him, the promise was held to be an original undertaking and not within the statute. This decision was put upon the ground, that as A was himself bound for B, the promise to C was for A's own benefit.* A promise to indemnify one if he will become bail for another in a criminal case, has been held not to ' Bullock «. Lloyd, 2 Car. and P. 119. and Ell. 453; and see Goodspeed e. See, also, to same effect, Howes v. Fuller, 46 Me. 141. Martin, 1 Esp. 162; contra, Winck- ♦TopIis». Grane, 5 Bing. (N.C.) 636. worth V. Mills, 2 Esp. 484. 'Conkey «. Hopkins, 17 Johns, 113. ' Per Redclitf, J. in Allaire v. Ouland, ' Harrison v. Sawtel, 10 Johns, 242. 2 Johns. Cas. 52. See, also, to same See, also, Terrell v. Maxwell, 28 Ohio effect, Maroy v. Crawford, 16 Conn. St. 383. In a celebrated case whieh 549; and see Weld. v. Nichols, 17 differed from the above, only in the Pick. 538; Chapman ». Ross, 12 fact that A was not bound to indemni- Leigh, (Va.) 565. fy B, it was held that the promise must 'Adams v. Dansey, 6 Bing. 506. be in writing. Green v. Creswell, 10 See comments on this case by Lord Adol. and Ell. 453, li. 2 Perry & Dav. Denman in Green v. Creswell, 10 Adol. 430. 58 THE STATUTE OF FBAUDS. be within the statute.* The reason given for this holding, in one case, is that the person bailed is under no obligation to indemnify the bail, and in another, is that if the person bailed is under an implied obligation to indemnify the bail the party requesting the bail to become such should be held to be the original promisor, and the party bailed, only collaterally liable. Where a party who was surety for the maker of a note procured others to sign as sureties, by promising to indemnify them, and save them harmless, it was held that such promise was an original undertaking, and not within the statute." , § 47. When promise to indemnify must bo in -writing — In- stances. — Where an attorney requested a party to execute to the sheriff a bail bond in a civil case for his client, and promised to indemnify such party for so doing, it was held the promise was within the statute. The court said the test was that " the origi- nal party remained liable, and the defendant incurred no liability except from the promise." ' A promise by one person to indem- nify another against loss or damage in becoming the surety for a third in an undertaking of replevin, has been held to be within the statute.* The court said: "If, therefore, the third person against whose debt, default or miscarriage the promise of indem- nity is made, would himself be legally liable to pay the promisee such debt or damage, the promise of indemnity is to be regarded 'Cripps V. HartnoU, 4 Best and Goodwin, 31 Vt. 268; Byers v. Mc- Smith, 414; Holmes v. Knights, 10 Clanahan, 6 Grill. & Johns. 250; Dunn New. Hamp. 175. v. West, 5 B. Mon. (Ky.) 376; Apgar's "Horn V. Bray, 51 Ind, 555. To Admr. v. Hiler, 4 Zab. (N. J.) 812; same effect, see Thomas v. Cook, 8 Lucas v. Chamberlain, 8 B. Mon. (Ky.) Bam. & Cress. 728; Id. 3 Man. & By. ^76; Marsh v. Consolidation Bank, 48 444. For cases holding or tending to Pa. St. 510; D'Wolf v. Raband, 1 establish that under Tarious circum- Peters, 476; Stocking ti. Sage, 1 Conn, stances a promise to indemnify need 519; Jones v. Shorter, 1 Kelley (Ga.) not be in writing, see Chapin ».Mer- 294; Townsley v. Sumrall, 2 Peters, rill, 4 Wend. 657; Barry v. Ransom, 170; Emerson /.. Slater, 22 How. (U. 12 New Tork, 462; Taylor v. Savage, S.) 28; Shook v. Vanmater, 22 Wis. 12 Mass. 98; Smith v. Sayward, 5 507. Greenl. 504; Aldrich ». Ames, 9 Gray, 'Per Lord Denman in Green v. 76; Cutter v. Emery, 37 New Hamp. Cresswell, 2 Perry & Dav. 430; Id. 10 667; Harris v. Brooks, 21 Pick. 195; Adol. & Ell. 453. Whitehouse ». Hanson, 42 New Hamp. •'Easter v. White, 12 Ohio St. 219, 9; Blake v. Cole, 22 Pick. 97; Hodges per Sutliff, J. See to same effect, V. Hall, 29 Vt. 209; Hendrick v. Kingsley ». Baloombe, 4 Barb. (N. Y.) Whittemore, 105 Mass. 23; Keith v. 131. WHEEE OEIGINAL DEBT EXTINGUISHED. 59 as collateral to his liability as principal, and within the statute." A promise by one person to another that he will indemnify such other from loss which he may sustain by reason of signing a sheriff's bond, has been held to be within the statute.' The same thing was held when one who was himself indemniiied by prop- erty of the principal, promised to indemnity a, third person if he would sign si note of the principal as surety." From the ex- amples given, the confusion in the authorities on this subject will be apparent, as well as the necessity of carefully analyzing the facts of each case as it arises, and applying to it the principles which have already been shown to be established. § 48. If oiiginal debt eztinguished or novated, promise not within the statute. — When the new promise has the effect of extin- guishing the old debt, it amounts to an original undertaking, and is not within the statute. ° In such case there is no third person liable as principal; there is no liability to which the promise is collateral; nor is there any obligation with which the promise concurs or runs together. A son did work for his father, for which the father was indebted, and the defendant, in considera- tion of the son releasing the father from such debt, verbally promised to pay it. Held, the promise was not within the stat- ute, and the defendant was bound.' The court said: "The plain- tiff discharged the debt due to him from his father, in considera- tion of tlie defendant's promise to pay him the amount due him. This promise was not a promise to pay the debt of another with- in the Statute of Frauds, but an original undertaking. The de- fendant promised to pay the money, not as surety or guarantor, 'Browne. Adams, 1 Stew. (Ala.) 51. ject, see Gull v. Lindsay, 4 Wels. '' Draughan ». Bunting,, 9 Ired. Law. Hurl. & Gor. 45; Eddy v. Roberts, 17 (Nor Car.) 10. For cases holding or 111. 505; Watson ». Randall, 20 Wend, tending to show that certain promises 201; Click «. McAfee, 7 Port, (Ala.) to indemnify must be in writing, see 62; Mead e. Keyes, 4 E. D. Smith (N. Simpson v. Nance, 1 Spears (So. Car.) T.) 510; Gleason v. Briggs, 28 Vt. 4; Martin v. Black's Exrs. 20 Ala. 309. 135; Andre «. Bodman, 13 Md. 241; Brush V. Carpenter, 6 Ind. 78; Maoey Watson v. Jacobs, 29 Vt. 169; Robin- V. Childress, 2 Tenn. Ch. R. (Cooper) son v. Lane, 14 Sm. & Mar. (Miss.) 438. 161; Quintard v. D'Wolf, 34Barb. (N. ' Curtis V. Brown, 5 Cash. (Mass.) T.) 97; Mosely v. Taylor, 4 Dana, 488; Allshouse v. Ramsay, 6 Wharton (Ky.) 542; Stewart v. Hinkle, 1 Bond, (Pa.) 331; Stone v. Symmes, 18 Pick. 506; Hedges v. Strong, 8 Oregon, 18. 467; Bird u. Gammon, 3 Bing. N. C. * Wood v. Corcoran, 1 Allen, (Mass.) 888. As further illustrating this sub- 405, per Hoar, J. 60 THE STATUTE OF FEAUDS. but as the sole debtor; not as a collateral promise, but as a sub- stituted promise. There was no debt of another as soon as the defendant's promise was made.^' "Where a party was taken on a ca. sa. and in consideration of the creditor discharging him from custody, a third person verbally promised to pay the debt, it was held that by such discharge the debt was extinguished, and the promise was not within the statute. The court said: " By the discharge of Chase with the plaintiff's consent, the debt as be- tween those persons was satisfied. * Then, if so, the promise by the defendant here is not a collateral but an original promise, for which the consideration is the discharge of the debt as between the plaintiff and Chase.'" For the same reasons, where there is an entire novation of the debt, and the third party becomes ver- bally bound for the new debt along with the original debtor, the new agreement is not within the statute. Thus, where one person was indebted, and entered into partnership with another, and the two said to the creditor of the one that they wished the debt to be their joint detit, and they would pay it, and the cred- itor consented, it was held the agreement was binding upon both, and need not be in writing, the effect of the agreement being to extinguish the first debt, and substitute another for it." § 49. When promise to pay out of proceeds of debtor's prop- erty not within statute. — A promise to pay the debt of another out of the proceeds of property of such other, placed in the hands of the promisor for that purpose, is not within the statute." ' Goodman v. Chase, 1 Bam & Aid. Tyrwh. 6; Hitchcock v. Lukens, 8 For. 297, per Lord EUenborough, C. J. ; to (Ala.) 333; Loomis i). Newhall, 15 same effect, see Lane v. Burghart, 1 Pick. 159; Andrews ». Smith, Tyrwh. Adol. & EU. (N. S.) 933; Cooper ». & Gr. 173; Id. 2 Cromp. Mees. & Eos. Chambers, 4 Der. (N. C.) 261; Butch- 627; Todd v. Tobey, 29 Me. 219; Nel- er V. Stewart, 11 Mees. & Wels. 857; son v. Hardy, 7 Ind. 364; Lucas v. Maggsi). Ames, 4 Bing. 470. Payne, 7 Cal. 92; Stoudt t>. Hine, 45 '^ Ex parte Lane, 1 DeGex. 300; see. Pa. St. 30; Consolidated Presbyterian also, on this subject, Baker ». Briggs, Society v. Staples, 23 Conn. 544; WU- 8 Pick. 122; Choppin v. Gobbold, 13 son v. Bevans, 58 111. 232; McLaren ». La. An. 238; Roth ». Miller, 15 Serg. & Hutchinson, 22 CaL 187; Clymer w. Kawh. 100; Sneed's Exra. v. White, 3 DeToung, 54 Pa. St. 118; Cameron ». J. J. Marsh (Ky.) 525; Musgrave v. Clark, 11 Ala. 259; Hilton v. Dins- Glasgow, 3 Ind. 31. more, 21 Me. 410; Goddard v. Mock- 's Meyer ». Hartman, 72 111. 442; bee, 5' Cranch, (C. C.) 666; Laing ». Runde v. Runde, 59 111. 98; Corbin v. Lee, Spencer, (N. J.) 337; Lee v. Fon- MoChesney, 26 111. 231; Stephens v. tains, 10 Ala. 755; Stanly «. Hen- Pell, 2 Cromp. & Mees. 710; U. 4 dricks, 13 Ired. (Nor. Car.) 86; Mo- PEOMISE TO PAY OUT OF DEBTOE's PEOPEETT. 61 In such case the promisor is simply an agent to distribute the prop- erty. The promise is an original one for the promisor alone. The party owing the debt is not liable on the promise, nor is any other person liable thereon except the promisor himself. In a leading case, one Taylor being in arrears for rent, and insolvent, conveyed all his effects for the benefit of his creditors, who employed Leper to sell them. On the day advertised for the sale, the landlord came to distrain the goods in the house, whereupon Leper promised to pay the rent if he would desist. Held, this promise was not within the statute.' Here the landlord relinquished his prior lien on the property, or in other words, left the property in the hands of Leper, and Leper in effect agreed to apply the proceeds of the sale of the property to the payment of the debt of its owner. One of the judges said that "Leper became the bailiff of the landlord, and when he had sold the goods the money was the land- lord's in his own bailiff's hands." Another judge said that Leper was not bound to pay the landlord more than the goods sold for. The property must be within the control of the promisor, in or- der to take the promise out of the statute; it is not sufficient that he is the agent of those who do control it." A debtor left certain notes of third persons with another for collection, and he prom- ised the debtor to collect the notes and pay the creditor a debt due him from the debtor. Held, the promise was not within the statute.' The court said: "This is no undertaking to pay the debt of a third party, within the Statute of Frauds; but it is an agreement by two persons for the use and benefit of a third, upon which such third person may maintain an ac- tion against the person promising, without proof of any written memorandum or consideration moving between the promisor and the party for whose benefit the contract has been made. It is a trust whicjh, having once undertaken to exe- cute, and entered npon the performance of the same, although voluntarily and without consideration, other than such as the law implies, he is bound in law and equity to complete." The mere Kenziee. Jackson, 4 Ala. 230; Con- *Quin v. Hanford, 1 Hill (N. T.), tra, Jackson v. Rayner, 12 Johns. 291. 82. 'Williams ». Leper, 3 Burr. 1886; 'Prather v. Vineyard, 4 Gilman, Id. 2 Wiis. 308; to same effect, see (111.) 40, per Purple, J. To same ef- Edwards v. Kelly, 6 Maule & S. 204; feet, see Drakeley v. Deforest, 3 Conn. Bampton . Aubert, 2 Bast, 325, per ward, 5 Greenl. (Me.) 604; Spooner v. Lord Ellenborough, C. J., and Law- Dunn, 7 Ind. 81; Pish v. Thomas, 5 rence, J. See, also, Walker ». Taylor, Gray, 45; Stern v. Drinker, 2 E. D. 6 Car. & Pa. 752; Fitzgerald v. Dres- Smith, (N. Y.) 401; Scott v. Thomas, ler, 7 Com. B. N. S. 374. 1 Scam. (111.) 58; VanSlyck v. Pulver, AGEEEMENT BY DEBTOE TO PAY THIED PEESON. 65 promise by the defendant to pay what the plaintiff would be liable to pay if the plaintiif would furnish him the means of do- ing so." In another case, one Marden, being insolvent, a verbal agreement was entered into between several of his creditors and one Weston, whereby Weston agreed to pay the creditors ten shillings in the pound in satisfaction of their debts, which they agreed to accept, and to assign their debts to Weston: Held, the promise of Weston was not within the statute. The court said : " It is perfectly clear that this was a contract to purchase the debts of the several creditors, instead of being a contract to pay or discharge the debts owing by Marden. * Instead of be- ing a contract to discharge Marden from his debts, it was a con- tract to keep them on foot. * We all agree fully upon the point that it is a contract for the purchase of the debts of Mar- den, which is not prohibited by the Statute of Frauds.' § 52. ■When promisor ■who is debtor to third person, agrees to pay his debt to creditor of such third person, promise not vrithin statute. — If A be indebted to B, and B be indebted to 0, and they get together and agree that B's debt to C shall be canceled, and A shall pay the debt which he owed B to C, such agreement is valid and binding without writing." In such case, A pays his own debt with his own money to a substituted creditor, and the fact that by the transaction the debt of another is paid, makes no difference. So, where the defendant's brother was indebted to the plaintiff, and being pressed for payment, sold the defendant ' Anstey «. Marden, 1 Bos. & Pul. 4 Taunt. 117; Williams v. Leper, 3 N. E. 124, per Chambre, J. See, also, Burr. 1886, Id. 2 Wills, 308; Edwards as bearing upon this subject, Love's v. Kelly, 6 Maule & S. 204; Bamptou Case, 1 Salk. 28; Allen v. Thompson, v. Paulin, 4Biiig. 264. 10 New Hamp. 32; Doolittle v. Naylor, * Dearborn v. Parks, 5 Greenl. (Me.) 2 Bosw.(N.T.) 206; French u.Thomp- 81; Wilson v. Coupland, 5 Bam. & son, 6 Vt. 54; Therasson «. McSped- Aid. 228; Hodgson v. Anderson, 5 on, 2 Hilton (N. Y.) 1; Hindman ». Dow. & Ry. 785; Id. 3 Bam. & Cress. Langford, 3 Strobh. (So. Car.) 207; 842; Lacy v. McNeile, 4 Dow. & Ry. Gardiner v. Hopkins, 5 Wend. 23; 7. It seems that the debt of B must Olmstead v. Greenly, 18 Johns. 12. be extinguished by the transaction, in Mr. De Colyar, in his valuable work order to iake the case out of the stat- on the Law of Guarantees, pp. 171-174, ute; Jackson v. Rayner, 12 Johns. 291 ; holds to the view that the following Wharton v. Walker, 6 Dow.- & Ry. cases may be supported by the rule 288; Cuxon v. Chp.ndley, 8 Bam. & here under consideration: Houlditch Cres. 591; Liversidge v. Broadbent, 4 V. Mike, 3 Esp. 86; Barrell v. Trussel, Hurl. & Nor. 603. 5 66 THE STATUTE OF FEAUDS. a pair of horses at a price less than the debt due the plaintiff, and the defendant promised his brother that he would pay the purchase price to the plaintiff, the court said the promise was not within the statute: " It was not a promise to answer for the debt of another person, but merely to pay the debt of the person mak- ing the promise to a particular person designated by him to whom the debt belonged, and who had a right to make such payment a part of the contract of sale. Such promise was no more within the Statute of Frauds than it would have been if the defendant had promised to pay the price of the horses directly to his brother, of whom he purchased them." ' § 53. When promise is in effect to pay promisor's own debt, it is not within statute, although it incidentally guaran- ty debt of another. — ^Whenever the promise is in effect to pay the debt of the promisor, even though the performance of the promise may extinguish the debt of a third person, the promise is not within the statute. A debtor gave to his creditor the note "Of a third person for the same amount as the debt, and guaran- tied the payment of the note. Held, the guaranty need not be in writing." The same thing was decided where the payee and iiholder of a note transferred it in payment of his debt, and giiarantied its payment by an instrument, which did not suflB- "Ciently express the consideration. The court said: "Although this is in form a promise to answer for the debt or default of another, in substance, it is an engagement to pay the guarantor's own debt in a particular way. He does not undertake as a mere surety for ' Per Jewett, J., in Barker v. Buck- Christopher, 1 J. J. Maish, (Ky.) 382; 'fin, 2 Denio, 45. For cases deciding Connor ». Williams, 2 Rob. (N.Y.) 46; and tending to establish these views, Bobbins v. Ayres, 10 Mo. 538; Clymer ■see Roe v. Hough, 3 Salk. 14; Rice v. v. DeYoung, 54 Pa. St. 118; Mt. Oli- Carter, 11 Ired. (Nor. Car.) 298; Bar- vet Cemetery Co. v. Sherbert, 2 Head, ■finger D. Warden, 12 Cal. 311; Israel (Tenn.) 116; Sanders v. Clason, 13 V. Douglas, 1 H. Blackstone, 239; Minn. 379; Maxwell e. Haynes, 41 Me. Bro-wn v. Strait, 19 111. 88; Pairlie v. 559. Denton, 2 Man. & Ry. 353; Id. 8 Barn. » Dyer v. Gibson, 16 Wis. 508. To .■& Cress. 395; Ford v. Finney, 35 Ga. same effect, see Barker v. Scudder, 56 258; Cailleux v. Hall, 1 E. D. Smith, Mo. 272; Hall v. Rodgers, 7 Humph. (N. Y.)5; Whartont!. Walker, 6 Don. (Tenn.) 536; Fowler v. Clearwater, & Ry. 288; Id. 4 Bam. & Cress. 163; 35 Barb. (N. T.) 143; Durham r. Man- Rowec. Whittier, 21 Me. 545; Cuxon row, 2 New York 533; Adcock r. t>. Chadney, 3 Barn. & Cress. 591; Mc- Fleming, 2 Dev. & Batt. Law (Nor. Laren v. Hutchinson, 22 Cal. 187; Mey- Car.) 225. er V. Harfman, 72 111. 442; Haydon v. 67 the maker, but on his own account, and for a consideration which has its root in a transaction entii-ely distinct from the liability of the maker." ' A plaintiff advanced money for a defendant, and in payment of the debt thus created, the defendant transferred to the plaintiff the note of a third- person, payable in chattels, and guarantied its payment. Held, the guaranty need not be in writ- ing. " The court said: "This was not an undertaking by the de- fendant to pay the debt of Eastman [maker of note]_. but an agreement to pay his own debt in a particular way. The plain- tiff had upon request paid a debt of twenty-five dollars, which the defendant owed to Sherwood, and had thus made himself a creditor of the defendant to that amount. If the matter had not been otherwise arranged, the plaintiff might have sued the defend- ant, and recovered as for so much money paid for him upon re- quest. But the plaintiff agreed to accept payment in a different way, to-wit: by the transfer of Eastman's note for the wood-work of a wagon, with the defendant's undertaking that the note should be paid. The defendant, instead of promising that he would pay himself, agreed that Eastman should pay. He might do that whether Eastman was his debtor or not; and the fact that East- man was a debtor, does not change the character of the defen- dant's undertaking, and make it a case of suretyship within the Statute of Frauds." The purchaser of personal property agreed by parol, in consideration thereof, to pay certain debts of his vendor due to a third person. Held, the promise was not within the stat- ute. The court said: the promisor "received the property con- tracted for, and it is wholly immaterial to him what direction was given to the purchase money. The vendor contracted to have it paid to his creditors, instead of himself, and it imposes no hardship upon the purchaser. It was his contract so to pay the purchase money, and such a contract is valid and bind- ing in law, although it is not evidenced by any writing.'" On ' Brown o. Curtiss, 2 New York, 225, »Per Scott, J., in Wilson v. Bea- per Bronson, J; to same effect, see vans, 68 111. 232; to the same effect. Dauber v. Blaokney, 88 Barb. (N. Y.) and illustrating this subject, see Ash- 432; Pitts V. Congdon, 2 New York, ford v. E^binson, 8 Ired. (Nor. Car.) 352. 114; Stewart v. Malone, 5 Phila. 440; 'Johnsonv. Gilbert, 4 Hill, 178, per Carpenter v. Wall, 4 Dev. & Batt. Bronson, J; Mobile & G. R. R. Co. v. (Nor. Car.) 144; Huntington d. Wel- Jones, 57 6a. 198; Nichols v. Allen, lington, 12 Mich. 10; Ardem v. Kow- 22 Minn. 283. ney, 5 Bsp. 254; Smith v. Finch, 2 68 THE STATUTE OF FEATIDS. the same general principles a verbal acceptance or promise to ac- cept a bill of exchange is not within the statute when the pro- misor has funds of the drawer in his hands to pay it.' It amounts to a payment of his own debt, and it makes no differ- ence whether he pay it to the drawer himself or to a creditor of the drawer who is designated by the bill of exchange. § 54. When promisor previously liable, promise not within statute. — If the promisor is already liable for the payment of the debt, his promise to pay it if a third person does not, is not with- in the statute. This is but another application of the principle that a promise to pay the promisor's own debt is not within the statute, even though its performance may discharge the debt of another. Thus A, through the agency of a broker, sold a parcel of linseed to B, who, through the same broker, sold it at an in- creased price to 0. The time for to pay the price was to arrive before that fixed for the payment by B. sent his clerk to the broker for the delivery order for the seed, and the broker took him to A, from whom the clerk obtained the order, upon the faith of a promise that C would pay A for the seed. It was held that the promise was not within the statute. The court said : " We are all agreed that the case is not within the Statute of Frauds. The law upon this subject is, 1 think, correctly stated in the notes to Forth v. Stanton, 1 "Wms. Saund. 211 e, where the learned editor thus sums up the result of the authorities: 'There is con- siderable difficulty on the subject, occasioned perhaps by unguard- ed expressions in the reports of the different cases, but the fair result seems to be that the question whether each particular case comes within this clause of the statute (s. 4) or not, depends not on the consideration for the promise, but on the fact of the origi- Scam. (111.) 321; Reed v. Holcomb, 31 205; Orrell v. Coppock, 26 Law Jour. Conn. 360; Rnnde v. Runde, 59 lU. 98; Cli. 269; Aiken v. Cheeseborough, 1 Allen V. Pryor, 3 A. K. Marsh, (Ky.) Hill, Law (So. Car.) 172, contra Wood 305; Wait V. Wait, 28 Vt. 350; v. Wheelock, 25 Barb. (N. T.) 625. Hackleman v. Miller, 4 Blackf. (Ind.) " Pillans v. Van Mierop, 3 Burr. 322; Rowland v. Rorke, 4 Jones (Nor. 1663; Townsley v. Sumrall, 2 Peters, Car.) 337; Devlin v. Woodgate, 34 182; Spaulding v. Andrews, 48 Pa. St. Barb. (N. Y.) 252; Jones v. Palmier, 1 411; Jones v. Council BlufFs Bank, 34 Doug. (Mich.) 379; CardeU v. McNeil, 111. 313; O'Donnell v. Smith, 2 E. D. 21 New York, 336; Gold v. PhilHps, Smith (N. Y.) 124; Mason i-. Dousay, 10 Johns. 412; Hodgson v. Anderson, 35 111. 424; VanReiinsdyck v. Kane, 1 5 Dow & Ry. 735; Id. 3 Barn & Cres. Gallison C. C. 633; Leonard v. Mason, 842; Stephens t>. Squire, 5 Modern, 1 Wend. 522; Grant ». Shaw, 16 Mass. NEW CONSIBEEATION. 69 nal party remaining liable, coupled with the absence of any lia- bility on the part of the defendant or his property, except such as arises from his express promise.' I quite concur in that view of the doctrine, provided the proposition is considered as embra- cing the qualification at the conclusicm of the passage; for though I agree that the consideration alone is not the test, but that the party taking upon himself the obligation upon which the action is brought, makes himself responsible for the debt or default of another, still it must be taken with the qualification stated in the note above cited, viz: an absence of prior liability on the part of the defendant or his property." ' The doctrine here announced in terms, that in order to bring the promise within the statute, there must be an absence ot liability on the part of the promisor, except such as arises from his express promise, is based upon the soundest reason, and aftords an explanation for many cases which could not otherwise be sustained upon principle. This doctrine is also applicable where the promise is to pay what the promisor was previously liable for jointly with others only; as in the case of a partnership, where the verbal promise of one partner to pay the partnership debt, is valid.^ But a promise by a firm to pay the individual debt of one partner;^ or by a stockholder of a cor- poration to pay its debts,* must be in writing; because in neither "case is there any pre-existing liability on the part of the promi- sor to pay. § 55. New consideration passing between promisee and prom- isor, will not alone take promise out of statute. — In many of the 341; Strohecker v. Cohen, 1 Spears, bins, 28 Coim. 544; Hoover v. Morris, (So. Car.) 349; Nelson c. First Nation- 3 Ohio, 56; and also cases heretofore al Bank of Chicago, 48 lU. 36; Shields cited on other branches of this subject. V. Middlet-on, 2 Cranoh C. C. 205; Pike ' Stephens v. Squire, 5 Modern, 205; V. Irwin, 1 Sand. (N. Y.) 14. Aikin v. Duien, 2 Nott & McCord, (So. ' Fitzgerald v. Dressier, 7 Com. B. Car.) 870; Files v. McLeod, 14 Ala. (J. Scott) N. S. 374, per Cockbum, C. 611; Howes v. Martin, 1 Esp. 162;, J. To this principle may be referred Rice v. Barry, 2 Cranch C. C. 447. "Williams «. Leper, 2 Wils. 308; Id. 3 'Taylor v. HiUyer, 3 Blackf. (Ind.) Burr, 1886; Bamptonii. Paulin, 4Bing. 433; Wagnon v. Clay, 1 A. K. Marsh, 264; Thomas v. "Williams, 10 Bai-n. & (Ky.) 257. Cress. 664; Houlditch ». Milne, 8 Esp. * Trustees of Free Schools v. Flint, 86; see, also, as further illustrating 13 Met. (Mass.) 539; "Wyman v. Gray, this point, Macrory v. Scott, 5 "W"els., 7 Harris & Johns. (Md.) 409; Rogers Hurl. & Gor. 907; Nelson v. Boynton, v. "Waters, 2 Gill & Johns. (Md.) 3 Met. (Mass.) 396; Chambers v. Bob- 64. 70 THE STATUTE OF FEAUDS. cases which have held a verbal promise to answer for another binding when the original debtor also remained bound, great stress has been laid upon the fact that the promise was founded upon a new consideration moving between the creditor and the promisor, and the promise has been decided to be not within the statute for that reason alone. In a celebrated case, often cited to sustain this position, a most learned judge' said that "wheu the promise to pay the debt of another " arose " out of some new and original consideration of benefit or harm moving between the newly contracting parties," the promise was not within the stat- ute. N'umerous cases have been decided upon the authority of this statement of the law; and it has been given as a reason for the decision of many cases which may well rest upon other grounds. The proposition of the learned judge was not necessary to a decis- ion of the case in which it was laid down, and, as stated by him, cannot be supported on principle, nor by the later and best con- sidered authorities. There must be a consideration for every contract of suretyship or guaranty, and to hold that in every case where the consideration moves from the creditor to the surety or guarantor, the promise is not within the statute, would be to repeal the statute altogether in a very large class of cases. If such were the law, the verbal promise of a surety or guarantor made in consid- eration of the payment to him of one dollar by the creditor, would be valid if the promise was to pay a still subsisting debt of the principal, amounting to a thousand dollars, or any greater sura. When the consideration passes between the surety or guar- antor and the creditor, the proinise will be within the statute, or not according to circumstances, but there must be some other circumstance besides the mere passage of the consideration to take the case out of the statute. In determining whether any particular case is within or without the statute, the true question is "What is the promise?" not " What is the consideration?" An able court has said: " We believe it wiU be found that in all the cases now regarded as sound where it has been held that a pa- rol promise to pay the debt of another is binding, the promisor held in his hands funds, securities, or property of the debtor de- vbted to the payment of the debt, and his promise to pay attaches upon his obligation or duty growing out of the receipt of such 'Kent, C.J., (afterwards Chancellor), in Leonard v. Vredenburgh, 8 Johns. 29. NEW CONSIDEEATION. 71 fund.'" In another case in which this question was involved, the court said: "It must be admitted that the cases respecting the appHcation of the Statute of Frauds are greatly confused and irreconcilable with each other. Upon no subject perhaps has there been more diversity of judicial decision. The value of the statute is everywhere admitted, and its language is plain, but in the supposed justice of a particular case a court has often lost sight of the exact rule prescribed by the legislature. As much ingenuity has been expended in efforts to take individual cases out of the statute, as was formerly devoted to avoiding the Stat- ute of Limitations, and in these ingenious efforts principles have been asserted, which, if sound, practically deny all effect to the expressed will of the legislature. Happily, there are glimmer- ings of late of a tendency to return to a plainer reading of the act, and to give to it a construction more consonant to the appar- ent mind of the legislature. * Without attempting any exten- ded review of them [the authorities] we think certain principles may be safely considered as settled, or if not settled, sustained by reason and the authority of the best considered adjudications. It is not true, as a general rule, that a promise to pay the debt of another is not within the statute, if it rests upon a new con- sideration passing from the promisee to the promisor. A new con- sideration for a new promise is indispensable without the statute, and if a new consideration is all that is needed to give validity to a promise to pay the debt of another, the statute amounts to nothing; nor can it make any difference that the new considera- tion moves from the promisee to the promisor. The object of the statute is protection against ' fraudulent practices commonly endeavored to be upheld by perjury,' and to these all suits upon verbal contracts to answer for another's debt or default, are equally exposed, no matter whence the consideration of the con- tract proceeded, or to whom it passed."" § 56. Promise not ■within statute when main object is to ^ See elaborate opinion of Poland, C. rison, 4 Bibb, (Ky.) 76; Lampson v. J., in which he sustains the views ex- Hobart, 28 Vt. 700; Noyes v. Humph- pressed in the text, FuUam v. Adams, reys, 11 Gratfc. (Va.) 636; Barber v. 37 Tt. 391. Bucklin, 2 Denio, 45; De Colyar on ''Per Strong 3. ia Maule «. Buck- Guarantees, p. 141; Kelsey v. Hibbs, nell, 50 Pa. St. 39. Kingsley v. Bal- 13 Ohio St. 340. , See, also, on this come, 4 Barb. (N. Y.) 131; Cross v. subject. Price «. Trusdell, 28 New Jer. Richardson, 30 Vt. 647; Floyd v. Har- Bq. (1 Stew.} 200. 72 THE STATUTE OF FEATJDS. benefit promisor himself — Observations. — ^Another rule upoa which many decisions have been founded, is that where the main or immediate object of the promisor is not the payment ot the debt of another, but to subserve some purpose of his own, the promise is not within the statute, although its performance may have the effect of discharging the debt of another. A contrac- tor had been employed by a railroad company to build certain bridges on its line, and the company failing to make its pay- ments as agreed, the contractor refused to go on. The defendant, who was a large stockholder in the road, had leased the com- pany railroad iron to the value of sixty-eight thousand four hundred dollars, and as security for payment, held an assignment of the proceeds of the road for that amount, which was to be paid in monthly instalments. If the bridges were not completed there would be no proceeds, and the company could not pay for the iron. The defendant verbally promised the contractor to pay him if he would go on and complete the bridges, and to secure himself from loss by reason of such promise, the defendant took from the company, securities consisting of real estate, and the company's bonds, secured by mortgage on the road, to an amount deemed by the company and himself sufficient to indemnify him. The company was insolvent: Held, the defendant's promise was not within the statute.^ The court said: "Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other' con- tracting party, his promise is not within the statute, although it may be in form a promise to pay the debt ot another, and although the performance of it may incidentally have the effect of extinguishing that liability." This rule is but another application of the principle that a verbal promise to pay the promisor's own debt, is valid, even though its performance inci- dentally extinguishes the debt 'of a third person. The words of the statute themselves, taken in their ordinary meaning, afford the means of threading the labyrinth ot authority on ' Emerson v. Slater, 22 Howard, (U. main v. Algar, 2 Car. & P. 249, and S.) 28, per Cliflord, J. To this prin-,, many of the cases already recited here- ciple may be referred the cases of in under other divisions of this sub- Castling V. Aubert, 2 East, 325; El- .iect. See, also, Lemmon v. Box, 20 kins V. Heart, Fitzg. 202; Macrory v. Tex. 329; Clay v. Walton, 9 Cal. 328. Scott, 5 Wels. Hurl. & Gor. 907; Jajr- BEL OEEDEEE AGENT. 73 this subject, and in every new case, as it arises, of arriving at a proper result. The object of the statute was to require writ- ten evidence when the promise was merely to answer for another, and not to afford a pretext by which the promisor might avoid performing his own obligations, because in so doing he inciden- tally discharged the obligation of another. The mere fact alone, that the leading object of the promisor is a benefit to himself, affords a very unsatisfactory test for determining, whether or not, the statute applies to any case, because it is often difficult to dis- tinguish the leading object from other objects, and the object a person has in entering into a contract is usually immaterial, as he is bound by his contract as made. ISTeither is the nature of the consideration a sufficient test. The true test is, what is the substance of the transaction "between the promisor and promisee? If it is a mere promise to answer for another, it is within the statute. If it is a promise to pay the promisor's own debt in a particular way, it is not within the statute. § 57. Promise of del credere agent not ■within statute. — The agreement of a del credere agent to pay for the goods sold through his agency is not within the Statute of Frauds, Such an agent agrees to be responsible for the goods so sold. By some courts he has heen said to be a surety or guarantor, and by others an original and principal debtor. Whatever may be the technical position he occupies, it is settled that his promise is not within the statute.^ The reason given by one court ^ was as follows': "The other and only remaining point is, whether the defendants are responsible by reason of their charging a del credere commis- sion, though they have not guarantied by writing, signed by themselves. We think they are. Doubtless if they had for a percentage guarantied the debt owing, or performance of the contract by the vendee, being totally unconnected with the sale, they would not be liable without a note in writing signed by 'Swan V. Nesmith, 7 Pick. 220; Kay & Johns. 478, remarks of Wood Bradley u. Eichardson, 23 Vt. 720; V. C, and Morris v. Cleasby, 4 Grove ». Dubois, 1 Term R. 112; Maule & Sel. 566. Sherwood v. Stone, 14 New Tork, 'Per Parke, B. in Couturier ». Has- 267; Mackenzie v. Scott, 6 Bro. Paxl. tie, 8 "Wels. Hurl. & Gor. 40, reversed Cas. 280: Muller «. Bohlens, 2 Wash, on appeal to Exoh. Ch. Hastiet'. Cou- C. C. 878; Thompson v. Perkins, 3 turier, 9 Wels. Hurl. & Gor. 102; but Mason, 232; Houghton v. Matthews, aflBrmed by the House of Lords, Cou- 3 Bos. & Pul. 485. See, also, on this turier v. Hastie, 5 House of Lords suhgect. Wickham v. Wickham, 2 Cas. 673. T4 THE STATUTE OF FRAUDS. them, but being the agents to negotiate the sale, the commission is paid in respect of that employment; a higher reward is paid in consideration of their taking greater care in sales to their custom- ers, and precluding all question whether the loss arose from negli- gence or not, and also for assuming a greater share of responsibility than other agents, namely, responsibility for the solvency and performance of their contracts by their vendees. This is the main object of the reward being given to them, and though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given." In determining this same question, another court ' said: " A guar- anty, though by parol, is not always within the statute. Perhaps, after all, it may not be strictly correct to call the contract of the factor a guaranty in the ordinary sense of that word. The im- plied promise of the factor is merely that he will sell to persons in good credit at the time; and in order to charge him the negli- gence must be shown. He takes an additional commission, how- ever, and adds to his obligation that he will make no sales unless to persons absolutely solvent; in legal effect, that he will be lia- ble for the loss which his conduct may bring upon the plaintiff, without the onus of proving negligence. The merchant holds the goods, and will not part with them to the factor without this extraordinary stipulation, and a commission is paid to him for entering into it. What is this, after all, but another form of sell- ing the goods? Its consequences are the same in substance. In- stead of paying cash, the factor prefers to contract a debt, or du- ty, which obliges him to see the money paid. This debt or duty is his own, and arises from an adequate consideration. * Suppose a factor agrees by parol to sell for cash, but gives a credit. His promise is virtually that he will pay the amount of the debt he thus makes. Yet who would say his promise is within the stat- ute? The amount of the argument for the defendant would seem to be that an agent for making sales, or, indeed, a collecting agent, cannot by parol undertake for extraordinary diligence, because he may thus have the debt of another thrown upon him. But the answer is, that all such contracts have an immediate respect to his own duty or obligation. The debt of another comes in inci- dentally as a measure of damages." 'Wolff w.jKoppel, S Hill, 458, per and same doctrine enunciated, Wolff Cowen, J. ; aBBrmed by Court of Errors, v. Koppel, 2 Denio, 368. PEINCIPAIi MUST BE LIABLE TO PB0MI8BE. 75 § 58. Promise not within statute unless made to party to whom principal is liable. — In order to bring the promise to an- swer for another within the Statute of Frauds, the promise must be made to the person to whom the other is already, or is there- after to become, liable. A verbal promise to a debtor himself to pay or furnish him the means of paying his debt, is not within the statute.' In a leading case on this subject the plaintiff was liable to one Blackburn on a note, and the defendant, upon suffi- cient consideration, promised the plaintiff to pay the note to Blackburn : Held, the promise was not within the statute." The court said: " If the promise had been made to Blackburn, doubt- less the statute would have applied. It would then have been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is, that it is not less the debt of another because the promise is made to that other, viz: the debtor, and not to the creditor, the statute not having, in terms, stated to whom the promise contemplated by it, is to be made. But upon consideration, we are of opinion that the statute applies only to promises made to the person to whom another is answerable." A owned a thrashing machine, upon which he owed a balance to B. One C purchased the machine of A, and paid him a certain sum, and verbally promised A to pay B the amount A owed him on the machine, as part of the purchase money to be paid by C to A. Held, the promise was not within the statute.^ A having a judgment against B, placed a warrant for his arrest in the hands of a bailiff, with in- structions that he might take half the amount in satisfaction of the judgment. The bailiff being about to arrest B, one C ver- bally promised the bailiff to pay him half the judgment, or sur- render B by the next Saturday, but did neither. Held, the ■Colt v. Root. 17 Mass. 229; Thomas 76. Preble v. Baldwin, 6 Cush. 549; V. Cook, 8 Barn. & Cress. 728; Morin Kske v. MoGregory, 34 New Hamp. v. Martz, 13 Minn. 191; Love's Case, 1 414; Pikew. Brown, 7 Ciisli. 133; Soule Salk. 28; Mersereau v. Lewis, 25 v. Albee, 31 Vt. 142; Alger v. Sooville, Wend. 248; Howard v. Coshow, 33 1 Gray, 391; Gregory u. Williama, 3 Mo. 118; Weld V. TSTichols, 17 Pick. Meriv. 582. 538; Pratt v. Humphrey, 22 Conn. * Per Lord Denman, in Eastwood r. 317; Barber v. Bucklin, 2 Denio, 45; Kenyon, 11 Add. & Ell. 438; Id. 8 North 4). Robinson, 1 Duvall (Ky.) Perry & Dav, 276. 71; Jones v. Hardesty, 10 GiU. & » Grim i). Pitch, 53 Ind. 214. Johns. 404; Aldrich v. Ames, 9 Gray, 76 THE STATUTE OF FEAUDS. promise was not within the statute. The court said: " It has been distinctly settled, that to bring the promise within the statute, the promisee must be the original creditor. * The debts are totally distinct debts, as well as the debtor's." ' In another case, deciding the same thing as those already stated, the court said: " The statute applies only to promises made to the persons to whom another is already or is to become answerable. It must be a promise to be answerable for a debt of, or a default in, some duty by that other person tp wards the promisee." " § 59. False representations of another's credit not within statute. — ^False and deceitful verbal representations as to the stand- ing and responsibility of a third person, are not within the Stat- ute of Frauds." Such representations cannot, with any regard for the ordinary meaning of language, be held a " special prom- ise" to answer for another. However much they may be within the mischief of the statute, they are clearly not within its lan- guage. In the leading case on this subject, one Freeman " false- , ly, deceitfully and fraudulently" asserted and affirmed, orally, that one Falch " was a person safely to be trusted and given credit to." The court held, upon great consideration, that Freeman was liable to an action in consequence of these representations.' In discussing and approving this case, another court said : ° " The case went, not upon any new ground, but upon the application of a principle of natural justice long recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of ac- tion. This is as just and permanent a principle as any in our whole jurisprudence. The only plausible objection to it is, that in its application to this case it comes within the mischiefs which gave rise to the Statute of Frauds, and that therefore the repre- 'Eeader v. Kingham, 13 Com. B. (Conn.) 381; Patten v. Gurney, 17 (J. Scott) N. S. 344, per Barle, C. J. Mass. 182; Russell v. Clark, 7 Cranch, 'ParkeB. in Hargreaves v- Parsons, 69; GaUaghert;. Brunei, 6 Cowen, 347; 13 Mees. & Wels. 661. Bwins v. Calhoun, 7 Vt. 79; Weeks v. •Eyres.Dunsford, 1 Bast, 318; Al- Burton, 7 Vt. 67. Lord Eldon was lenv. Adington, 7 Wend. 9; Haycraft strongly opposed to this doctrine, and V. Creasy, 2 Bast, 92; Warren v. Bar- thought it not good law. See Evans ker, 2 Duvall, (Ky.) 155; Benton >. v. Bicknell, 6 Vesey, Jr. 174. Pratt, 2 Wend. 385; Tapp v. Lee, 3 *Pasley v. Freeman, 3 Term R. 51. Bos. & Pul. 367; Wise «. Wilcox, 1 "Upton ». Vail, 6 Johns. 181, per Day, (Conn.) 22; Foster*. Charles, 6 Kent, C. J. Bing. 396; Hart v. Tallmadge, 2 Day, FALSE EEPEESENTATION OF ANOTHBe's CREDIT. 77 sentation ought to be in writing. But this, I apprehend, is an objection arising from policy and expediency, for it is certain that the Statate of Frauds, as it now stands, has nothing to do with tlie case." A statute has been passed in England, provi- . ding that no action shall be brought to charge any person by reason of any representations concerning the credit, ability, etc., of another, unless the representations are in writing;' and a simi- lar statute has been enacted in several of the United States. "When the verbal representation was also accompanied by a verbal proinise to pay the debt of the third party, concerning whom the representation was made, the party making the representation has still been held liable. Thus, the representation and promise were " that one Leo was a good man, and might be trusted to any amount; that the defendant durst be bound to pay for the said Leo; and that if Leo did not pay for the goods, he would." It was objected that the injury might have arisen from a violation of the promise to pay, and that the action could not be main- tained because of the Statute of Frauds, but the defendant was held liable." The court said : " There never was a time in the English law when an action might not have been maintained against the defendant for this gross fraud. * There is no proof that the plaintiff ever considered the defendant as his debtor, or ever called upon him for the money, or relied upon his prom- ise in the least degree. In the next place, we must suppose every man to know the law, and if the plaintiff .was acquainted with the law, he must have known that the defendant's promise was worth nothing, and could have given no credit to him upon it. He cannot have considered it in any other light than as a mode of expression by which the defendant intended more strongly to express his opinion of Leo's circumstances." § 60. Promise in substance to pay ^ debt of another, no matter what its form, is within statate. — ^When the promise is not in form, but is in substance, to pay the debt of another, it is ' Ninth Geo. IV. chap. l4, § 6. For Whitney, 8 Allen, 207; Huntington ». decisions on this subject, see Lyde v. Wellington, 12 Mich. 11. See, also, Barnard, Tyrwh. & Gr. 250; Tatton v. on this subject, Brp-vmeon Frauds, pp. Wade, 18 Com. B. 370; Haslock v. 169-177. Pergusson, 7 Ad. & E11.86; Norton^. ''Hamar v. Alexander, 5 Bos. & Huxley, 13 Gray, 285; Kimball v. Pul. 241, per Sir James Mansfield. Comstock, 14 Gray, 508; Marin v. ' See, also, Thompson v. Bond, 1 Blanchard, 2 Allen, 386; McKinney v. Camp. 4. 78 THE STATUTE OF FEATTDS. within the statute. Thus, the defendant requested the plaintiff to sell a third person goods, and promised to indorse his note at six months for the price. Held, the promise was within the stat- ute, and coiild not be enforced.* The court, after saying that the promise was to become the third person's surety, proceeded: " To say then that this is not in effect to answer for their debt, would be a sacrifice of substance to sound. It would be devising a formulary by which, through the aid of a perjured witness, a creditor might get round and defraud the statute. He may say ' Ton did not promise to answer the debt due to me from A, but only to put yourself in such a position that I could compel you to pay it.' Pray where is the difference except in words? Ac- cording to such reasoning, unless you recite the words of the statute in your undertaking, it will not reach the case. No legis- lative provision would be worth anything upon such a construc- tion." In andther case the plaintiff had contracted to supply goods to A, to be paid for in cash on each delivery. A being desirous of obtaining the goods on credit, the defendant, who had an interest in the performance of the work upon which the goods were to be used, promised the plaintiff that if he would supply the goods to A, upon a month's credit, and allow him, the de- fendant, a certain per cent, upon the amount of the invoice, he would pay him, the plaintiff, cash, and take A's bill without re- course. Held, the promise was within the statute.* The court said: " A contract to give a guaranty, is required to be in writ- ing as much as a guaranty itself. * This is in substance an en- gagement by which the buyers of goods are not to be exonerated, but the defendant is to indemnify the seller against their default." A verbal promise to procure some one else to sign a guaranty for certain freight, has been held not to be within the statute.* There ' Per Cowen, J. in Carville u. Crane, (Tenn.) 313; Thomas v. Welles, 1 5 Hill, 483; see, also, Gallagher v. Root (Conn.) 57. In Fitch ». Gardenier, Brunei, 6 Cowen, 346; Taylor v. 2 Albott's Rep. Omitted Cas. 153 a Drake, 4 Strobh. (So. Car.) 431 ; Pike suit -was pending, which one of the V. Irwin, 1 Sandf. (N. Y.) 14; Quin parties wished to compromise, but his V. Hanford, 1 HiU, 82; Wakefield v. attorney promised, if he would go on Greenhood, 29 Cal. 597; but see to make no charge for his services un- D'Wolf V. Rabaud, 1 Peters, 476. less he was successful. Held, this was ''Per Pollock C. B. in Mallet v. not a collateral undertaking or guaran- Bateman, Law Rep. 1 C. P. 163; S. C. ty of collection, and need not be in 16, J. Scott N. S. 530; to similar effect, writing to bind the attorney making it. see Martin v. England, 5 Terg. ^Bushnell v. Beavan, 1 Bing. PEOMISE TO ANSWEE FOE FUTUEE LIABILITY. 79 the promise was that the creditor should have, not the promisor's, but a third person's guaranty for the debt. It has also been held, that a promise by one who owes a party about to be sued by another, that he will not pay without giving notice to the party about to sue, so that he may have an opportunity to attach the debt, is not within the statute.' The same thing has been held where one who receipted for attached property promised that it should be returned upon demand." In these two last cases the promise was in effect to turn over to the creditor the debtor's own property, and not that of the promisor; and in none of the three last mentioned cases was the promise to pay the debt, and in case of a breach the debt would not have been the measure of dam- § 61. Promise to ans-wer for future liability of third party is within the statute. — If the future primary liability of a third per- son to the promisee is contemplated as the foundation of the prom- ise, then the promise is within the statute precisely the same as if the liability had existed when the promise was made. The dis- tinction was at one time made, that if there was no existing lia- bility on the part of the third person when the promise was made, it was not within the statute, because there was nothing to which it was collateral.' This distinction has, however, long been over- ruled, and the law settled as above stated.^ Thus, the defendant and A came to the plaintiff's warehouse and agreed upon a par- cel of goods for A, and the defendant said he would guaranty the payment. A afterwards came alone, and ordered other goods, when the plaintiff sent to the defendant, and asked him whether he would engage for A. The defendant replied: ." You may not only ship that parcel, but one, two or three thousand pounds more, and I will pay you if he does not." The plaintiff, relying on this promise, afterwards delivered the goods to A. Held, the promise was within the statute.' The court said: "Before the case of Jones v. Cooper, I thought there was a solid distinction between an undertaking after credit given and an original under- N. C 103; Id. 4 Moore & Scott, * Jones v. Cooper, 1 Cowp. 227; 622. Matson v. Wharam, 2 Tei-m R. 80; ' Towne v. Grover, 9 Pict. -306. Mallet v. Bateman, Law Rep. 1 C. P. 'Marion v. Faxon, 20 Conn. 486. 163. ' Per Lord Mansfield, in Mowbray v. ^ Peckham v. Faiia, 3 Douglas, 13, Cunningham, Hilary Term. 1773, cited per Lord Mansfield. But see Whit- in Jones v. Cooper, 1 Cowp. 227. man r. Bryant, 49 Vt. 512. 80 THE STATUTE OF FKAtTDS. taking to pay, and that in the latter case, the surety being the object of the confidence, was not within the statute; but in Jones V. Cooper, the court was of opinion that wherever a man is to be called upon only in the second instance, he is within the statute; otherwise, where he is to be called upon in the first instance." In another case, the defendant verbally authorized the plaintiffs, who were merchants, to let a third person have a certain amount of goods, and promised that he would guaranty the payment. The plaintifi^s afterwards delivered the goods to the third person, and charged them on their books to the defendant, for the third per- son. Held, the promise was to answer for the debt of another, and that it could not be enforced for want of writing.' § 62. Promise -within statute if any credit given to third per- son. — If the party to whom goods are delivered, or for whose benefit a service is performed, incur thereby a debt so that he is liable at all, then the undertaking of another, in aid of his liabil- ity and collateral to it, must be in writing to be binding, although the collateral undertaking may have been the principal induce- ment to the delivery of the goods, or the performance of the ser- vice.° A landlord to whom rent was due gave a warrant to A to distrain upon the tenant. The defendant, who was a creditor of the landlord, paid the broker that valued the goods, and put the plaintiff on the premises to keep possession of the goods, and promised to pay him his charges, and also to repay him certain 'Kinloch v. Brown, 2 Spear's Law, Chase «. Day, 17 Johns. 114; Brun- (So. Car.) 284; see, to same efFect as ton v. Dullens, 1 Foster & Fin. 450; text, Cahillv. Bigelow, 18 Pick. 369; Bresler b. Pendell, 12 Mich. 224; Brady Capertoni). Gray, 4Tersr. (Tenn.)563; u. Sackrider, 1 Sandf. (N. T.) 514; Ware v. Stephenson, 10 Leigh, (Va.) Hill v. Raymond, 3 Allen, 540; Larson 155; Ex parte Williams, 4 Terg. v. Wyman, 14 Wend. 246; Elder v. (Tenn.) 579; Noyes v. Humphreys, 11 Warfield, 7 Harr & Johns. (Md.) 391; Gratt. (Va.) 636; Tilleston o. Nettle- Darlington v. McCunn, 2 E. D. Smith, ton, 6 Pick. 509; Taylor v. Drake, 4 (N. T.) 411; ConoUy t). KettleweU, 1 Strobh. (So. Car.) 431; Newell v. In- Gill. (Md.) 260; Hanford v. Higgins, graham, 15 Vt. 422; Huntington v. 1 Bosw. (N. T.) 441; Bushee v. Allen, Harvey, 4 Conn. 124; Leland v. Crey- 31 Vt. 631; Allen v. ScarfF, 1 HUton, on, 1 McCord, (So. Car.) 100; Puckett (N. T.) 209; Steele v. Towne, 28 Vt. V. Bates, 4 Ala. 390; Peabody v. Har- 771; Dixon v. Frazee, 1 E. D. Smith, vey, 4 Conn. 119. (N. Y.) 32; Boykin v. Dohlonde, 1 = Walkers. Richards, 89 New Hamp. Sel. Cas. Ala. 502. See, also, as to 259; Matson v. Wharam, 2 Term R. collateral promise, Glidden v. Child, 80; Cahill v. Bigelow, 18 Pick. 369; 122 Mass. 433. Anderson v. Hayman, 1 H. Black, 120; WHETHEE PEOMISE OEIGINAL OE COLLATEEAL. 81 sums to be advanced to another. .Held, the promise was within the statute, on the ground that the landlord was responsible as principal for the necessary expenses of the distress, and conse- quently the promise was to pay the debt of another.' It makes no difference that the promisee relied principally upon the prom- isor; if the third party is at all liable to him, to do the same thing, the promise is within the statute. A contractor who was building a house for the defendant, employed the plaintiff to fur- nish the stone, but failed to pay him. The defendant promised the plaintiif that if he would go on and finish the work, he would pay him; but the contractor was not discharged from his liability to the plaintiff. Held, the promise was within the statu te.° So, where the plaintiff had contracted to deliver a quantity of rock to a third person at an agreed price, and before the delivery of the same the plaintiff made known to the defendant his determination not to deliver the rock upon the credit of such third person, and the defendant thereupon said to the plaintiff: "You bring the rock, and I will see you paid for it." The court held the promise was within the statute.^ In these cases, and indeed in most of .the cases on this subject, the promise of the proposed surety or guar- antor was principally relied upon by the promisee, and formed the inducement upon which he acted. When, by reason of the statute, the promisor does not become liable, no relief can be granted against him in equity, although he is proceeding against the promisee at law, in direct violation of his promise.^ "When credit is given to two jointly, and they are both principals, the statute does not apply to their engagement.' § 63. When promise is original or collateral, cases holding it original. — It is apparent that the question " to whom was the credit given ? " often becomes highly important. If the credit is given to the promisor alone, his promise need not be in writing. But if credit is given to a third person, to any extent, and the promise is collateral to the liability of such third person, it must he in writing. The solution of this question is frequently a mat- ter of great difficulty, and no general rule which will serve as a ■Colmant). Eyles, 2 Starkie, 62. ^Gibbsu. Blanchard, 15 Mich. 292; 'Gill!). Herrick, 111 Mass. 501. Wainwright v. Straw, 15 Vt. 215; = Doyle w. White, 26 Me. 341. Hetfield ■«. Dow, 3 Dutoh. (N. J.) 'Phelps V. Garrow, 8 Paige, Ch. 440; Ex parte Williams, 4 Yerg.. 322. (Tenn.) 579. 6 82 THE STATUTE OF FEAUDS. test, can be given. In each case, the " expressions used, the sit- uation of the parties, and all the circtimstances of the case, should be taken into consideration.'" It has been held that a promise " to be the paymaster " of one who should render services to another, was an original promise, and not within the statute, but that if the words were " to see him paid," it was collateral, and within the statute." Where the defendant inquired of the plain- tiff the terms on which he would let 0, his nephew, have news- papers to sell, and on being told the terms, said: " If my nephew calls for the papers, I will be responsible for the papers he shall take," it was held that this was an original and absolute contract on the part of the defendant, and not within the statute.' An order was: " Please give the bearer, Henry Fink, the goods which he will select, not exceeding over five hundred and fifty dollars, on my account." Goods having been delivered to Fink on the order, it was held that the writer of the order was liable as prin- cipal, and not as guarantor." If goods are sold on the credit of the promisor alone, his promise to pay for them need not be in writing, even though they are delivered to a third person.* In an important case on this subject, the plaintiff had been employed by a local board of health to construct a main sewer. Notice had been given to the owners of certain private houses, to connect their house drains with this sewer within a certain time. The plaintiff having been requested by the overseer to make these connections, asked who would pay him for it, when the defend- ant, who was chairman of the board, said: " Go on, Mountstephen, and do the work, and I will see you paid," it was held that, tak- ing all the circumstances into consideration, the defendant was liable as principal, and his promise was not within the stat- ute.'^ The court said: " In this case, seeing that the parties knew that the board was not liable, and that the plaintiff would 'Elder»;.Waxfleld, 7Harr. &Jolins. * Neberroth ». Riegel, 71 Pa. St. (Md.) 391. 280. ^Watkinsi). Perkins, 1 Ld. Raym. 'MoCaffil o. RadclifiF, 3 Robertson, 224; see, also, Skinner v. Conant, 2 (N. T.) 445. Vt. 463; Thwaits v. Curl, 6 B. Men. « Mountstephen ». Lakeman, Law (Ky.) 472; Briggs v. Evans, 1 E. D. Rep. 7 Q. B. 196, per Willes, J.; see. Smith, (N. T.) 192; Jones v. Cooper, 1 also, Smith v. Rudhall, 3 Poster & Cowp.227; Bates v. Starr, 6 Ala. 697; Pin. 143; Jefferson County v. Slagee, Matson v. Wharam, 2 Term R. 80. 66 Pa. St. 202; Edge v. Prost, 4 Dow. » Chase V. Day, 17 Johns. 114. & Ry. 243; Hiltz v. Scully, 1 Cine. 554. WHETHEE PEOMISB OEIGINAL OE "COLLATEEAL. 83 not go on unless he had the board or the defendant liable, and did not care to have the defendant liable if the board was liable, the facts seem to exclude, and the jury might well find that they excluded, the notion of the defendant becoming surety for a liability either past, present or future, upon the part of the board ; and they might look upon the defendant's contract as a contract to pay, whether the board have been, or shall be, liable or not. Do that work now, and you shall be paid for that work; so that it is a case of principal liability." In another case, the promisor in- troduced a third person to an upholsterer, and asked him if he had any objection to supplying such third person with some fur- niture, and that if he would, he, the promisor, " would be answer- able," and that " he would see it paid at the end of six months." Held, this was an original undertaking, as principal, on the part of the promisor. The court said: "Whether the contract was original or collateral, viz: whether it was binding on the parties to pay in the first instance and at all events, or only binding in case the other does not, will depend on the contract between the parties. I think that the expressions, ' I '11 be answerable,' and ' I '11 see you paid,' are equivocal expressions. And then we ought to look to the circumstances to see what the contract between the parties was. * It was left to the jury to say whether he was the original debtor, and they found that he was. I think the jury warranted in that finding. My opinion is founded substan- tially on the facts of the case, and not on the equivocal expres- sions, as I consider the words capable of being explained by oth- er circumstances." ' § 64. Whether promise original or collateral is question of fact — Evidence — Cases holding promise collateral. — The man- ner in which the transaction is entered in the creditor's books, often has a controlling influence in determining the question, "To whom was the credit given"? The fact that the charge on 'Simpson v. Penton, 2 Cromp. & Burke, 4 Wis. 119; Austen v. Baker, Mees. 430, per Bayley, B. See fur- 12 Modern, 250; Hazen v. Bearden, 4 ther, on this subject, Payne v. Bald- Sneed, (Tenn.) 48; Hetfield v. Dow, 3 win, 14 Barb. (N.Y.) 570; Dixon v. Dutch, (N. J.) 440; Gordon v. Martin, Hatfield, 2 Bing. 439; Smith v. Hyde, Pitzgibbou, 302. As to when guaran- 19 Vt. 54; Clancy v. Piggott, 4 Nev. ty is sufficiently ambiguous to admit & Mann, 496; Sinclair v. Bichardson, of parol evidence to explain it, see 12Vt.8S; Birkmyr«. Darnell, 1 Salk. Goldshede v. Swan, 1 Wels. Hurl. & 27; Id. 2 Ld. Raym. 1085; Turton v. Gor. 154. 84 The statute of feauds. the creditor's books was to a third party has been held to control an absolute promise to pay, and to show that the liability of the promisor was only collateral.^ If the creditor makes out a bill to the third party, and presents it to him in the first instance, this is strong evidence to show that the credit was given to him, and that the promisor was only collaterally liable.^ But it is not conclusive evidence of that fact, and may be controlled by other circumstances/ These various facts are matters of evidence, tending more or less to show to whom the credit was given, and will be received against the plaintiff to establish that the credit was given to a third person, but they are not evidence in favor of the plaintiff to charge the defendant, for that would be to permit the plaintiff to manufacture evidence for himself.* An instance where the promisor was held only collaterally liable, and not bound without writing, was as follows : A first lieutenant in the navy, serving on board a ship, requested the plaintiff, a tailor and slopseller, to supply the crew of the ship with clothing, and at the same time said: "I will see you paid at the pay-table; are you satisfied"? The plaintiff replied, "Perfectly so." The clothing was delivered on board the ship, and the lieutenant compelled sev- eral of the sailors who did not want clothes to take them. The court thought the slopseller relied upon the power of the lieu- tenant to stop the money out of the sailors' pay, and not upon his personal liability, and viewed as a controlling circumstance that the amount due for the clothing was so large that it could not have been expected that the lieutenant would be able to liquidate it out of his pay.' So where tlie promisor, upon being asked to become responsible for goods to be furnished a third person, replied: "You may send them, and I'll take care that they are paid for at the time," it was held that under the circum- ' Anderson v. Hyman, 1 H. Black, Pennell v. Pentz, 4 E. D. Smith, (K. 120; ITatson v. Wharam, 2 Term, 80. T.) 639; Larson v. Wyman, 14 "Wend. On same subject see ConoUy v. Kettle- 246. well, 1 Gill, (Md.) 260; Leland !). Grey- ' Mountstephen v. Lakemau, Law on. 1 McCord, (So. Car.) 100; Dixon Rep. 7 Q. B. 196. r. Frazee, 1 B. D. Smith, (N. Y.) 32. * Cutler v. Hinton, 6 Rand. (Ya.) The fact that a certain person is charg- 609; Walker v. Richards, 41 New ed on the plaintiff's book with goods, Hamp. 388; Noyes v. Humphreys, 11 is not conclusive evidence that the Grratt. (Va.) 636; Kinloch v. Brown, 1 credit was given to him, Swift o. Rich. (So. Car.) 228. Pierce, 13 AUen, 136. 6 geate v. Temple, 1 Bos. & Pul. '' Storr V. Scott, 6 Car & Payne, 241 ; 158. VKKBAL SUBSEQUENT TEOMISE AND STATUTE OF LIMITATIONS. 85 stances lie was only collaterally liable, and not bound unless his promise was in writing.' In another case, the plaintiff, an inn- keeper, had furnished a dinner for a public celebration, under the direction of a committee of which the defendant was a member. It was the understanding that every person should pay for his own dinner. The defendant was captain of a military company which took dinner upon that occasion. "While the servants of the plaintiff were collecting the pay, the defendant told them they need not call upon the members of the military company, as he would be responsible for them. Held, the promise was coMateral, and within the Statute of Frauds.^ From the exam- ples which have been given, it is clear that the words made use of by the parties cannot alone be relied upon to show to whom the credit was given. It is a question of fact to be found by the jury in each particular case, and in its determination, not only the language made use of, but also the situation and surroundings of the parties, and every other fact and circumstance bearing upon the question should be taken into consideration. § 65. If original promise in writing, verbal subsequent prom- ise takes case out of statute of limitations — Verbal guaranty sufficient to support verbal account stated. — If the Statute of Frauds has once been satisfied by writing, a new verbal promise will he sufficient to take the case out of the Statute of Limitations. Thus the defendant, having entered into a guaranty in writing, and become liable upon it more than six years before the com- mencement of the suit, verbally promised, within six years, that the matter should be arranged: Held, he was liable. The Stat- ute of Frauds was satisfied by the guaranty having been origi- nally in writing. In order to take a case out of the Statute of Limitations, the new promise need not be in writing. The two statutes, the one requiring a writing, and the other not, should not be confounded. ° It has been held that if a person who has verbally guarantied the price of goods sold, afterwards verbally promise to pay for them, he is liable on an account stated. Thus the defendant verbally undertook to see the plaintiff paid for goods supplied by him to A, at the defendant's request. After the goods had been supplied, and A had made default in pay- ment, the defendant verbally acknowledged his liability under ' Eaing v. Story, 3 Car. & Payne, 130. ° Gibbons v. McCasland, 1 Bam. & "Tileston v. Nettleton, 6 Pick. 509. Aid. 690. 86 THE STATUTE OP FEAUDS. the guaranty, and promised to pay the plaintiif the price of the goods. The court said, that while the statement of an account and promise to pay could give no cause of action if the obligation on which it was founded never could have been enforced at law; yet here, there was. a clear legal liability under the guaranty whicli the Statute of Frauds did not vacate or annul, but rendered inca- pable of being enforced for want of legal evidence, and it was sufficient, under the authorities, to support a statement of account.^ § 66. The form of the writing. — The statute proceeds " un- less the agreement or some memorandum or note thereof shall be in writing." From the use of the words "some memorandum or note thereof," the design seems to have been to dispense with formalities in the writing required. The agreement, memoran- dum or note, must substantially express the real transaction, but the form in which it is expressed, is wholly immaterial. It may be in the form of a letter ^ of a receipt ° of an order * of the re- turn of a sheriff upon an execution ' of a vote of a corporation entered on its books ° or in any other form provided it expresses the substance of the transaction. It is not necessary that it should consist of a single paper. Several letters or papers which on their face refer to each other, may be taken together to make a complete agreement, note or memorandum.^ But it is well settled, that in order that the several papers may be read togeth- er, they must on their face refer to each other, and that their mutual relation cannot be shown by parol evidence.' There are, 'Wilson ». Marshall, 15 Irish Com. «Tufta v. Plymouth Gold Mining Co. LawEep. 466. 14 Allen, 407; Chase -u. Lowell, 7 ' Saundersen v. Jackson, 2 Bos. & Gray, 33. Pul. 288; Foster v. Hale, 3 Vesey, Jr. ' Jackson v. Lowe, 1 Bing. 9; Allen 696; Western r. Russell, 3 Vesey & v. Bennet, 3 Taunt. 169; Jones v. Bea. 187; Allen v. Bennet, 3 Taunt. Post, 6 Cal. 102; Owen v. Thomas, 3 169; Brettel ». Williams, 4 Wels. MyL & Keen, 353; Simons ». Steele, 86 Hurl. & Gor. 623. New Hamp. 73; Huddleston v. Bris- »Bariokman«. KuykendaU, 6Blackf. coe, 11 Vesey, 583; Salmon Falls (Ind.) 21; Ellis v. Deadman, 4 Bibb Manf. Co. v. Goddard, 14 How. {U. (Ky.) 466. S.) 446; Wilson Sewing Machine Co. *Lerned u. Wannemacher, 9 Allen, v. Schnell, 20 Minn. 40; Learned v. 412. Wannemacher, 9 Allen, 412; Tall- ^ Nichol V. Ridley, 5 Terg. (Tenn.) man v. Franklin, 14 New York, 584; 63; Barney o. Patterson, 6 Han-. & Chapman v. Bluck, 5 Scott, 515; Johns. (Md.) 182; Elfe v. Gadsden, 2 Parkhurst v. Van Cortland, 14 Johns. Rich (So. Car.) 373; Hanson v. Barnes, 15. 3 Gill & Johns. (Md.) 359. ^ Jacob v. Kirk, 2 Moody & Rob. WHOLE PEOMISE MUST BE IN WEITING. 87 however, a few cases wMcli seem to countenance a contrary doc- trine." A writing which is signed by the party to be charged, may be read together with one which is not signed.* If, when all the papers which refer each other are read together, the terms of the contract are doubtful, they are not sufficient to satisfy the statute.' The agreement note or memorandum may be written with ink or pencil, or may be printed or stamped,* and it may be executed at the time the contract is made, or at any subse- quent time before the suit is brought." § 67. The ■whole promise must appear from the ■writing. — Whatever the form of the writing may be, and whether it consist of one or more parts, all the essential terms of the contract (un- less, perhaps, the consideration,) must appear from it, and parol evidence cannot be introduced to aid it.° Thus, in a letter writ- ten by the defendant to the plaintiff, relating to a proposed mort- gage, but which did not itself say anything about the mortgage, the following words were used: " I will take any responsibility myself respecting it, should there be any." Held, the de- 221; Clinan v. Cooke, 1 Sohoales & Lefroy, 22; Moale v. Buchanan, 11 G-ill & Johns. (Md.)314; Wiley «. Roberts, 27 Mo. 388; Morton v. Dean, 13 Met. (Mass.) 385; Boardman v. Spooner, 13 Allen, 853; Freeport v. Bartol, B Greenl. (Me.) 340; Nichols v. Johnson, 10 Conn. 192; Abeel v. Eadcliff, 13 Johns. 297; Ide v. Stanton, 15 Vt. 685; O'Donnell v. Leeman, 43 Me. 158; Adams v. McMillan, 7 Port. (Ala.) 73; Blair «. Snodgrass, 1 Sneed (Tenn.) 1; Boydell w. Drummond, 11 East, 142; Wilkinson v. Evans, Law- Rep. 1 C. P. 407. 'Allen V. Beiinet, 8 Taunt. 169; Salmon Falls Manf. Co. v. Goddard, 14 How. (U. S.) 446. See, also. Bird V. Blosee, 2 Vent. 361; Johnson v. Dodgson, 2 Mees. & Wels. 653. "DeBeiU. Thomson, 8 Beav. 469; Gale V. Nixon, 6 Cow. (N. Y.) 445; Coles V. Trecothick, 9 Vesey, 234; Dodge V. Van Lear, 5 Cranch (C. C.) 278; Western -u. Russell, 3 Vesey & Bea, 187; Toomere. Dawson, Cheves Saunderson v. Jackson, 11 Jr. East, (So. Car.) 6 8 Esp. 180. "Brodie v. St. Paul, 1 326; Boydell v. Drummond, 142. * Draper v. Pattani, 2 Spears (So. Car.) 292; Schneider jj.Norris, 2 Mauls & Sel. 286; Vielie». Osgood, 8 Barb. (N. T.) 130; Saunderson v. Jackson, 2 Bos. & Pul. 238; Jacob v. Kirk, 2 Moody & Rob. 221; M'Dowell v. Chambers, 1 Strobh. Eq. (So. Car.) 347; Geary v. Physic, 5 Bam. & Ores. 234; Clason v. Bailey, 14 Johns. 484; Pitts V. Beckett, 13 Mees. & Wels. 743. * Williams u. Bacon, 2 Gray, 387; Sievewright v. Archibald, 17 Ad. & Ell. N. S. 103. As to the matters treated of in this section, see, at great- er length, Browne on Frauds, Chap. 17. « Steams v. Hall, 9 Cush. 81; Hall v. Soule, 11 Mich. 494; Bryan «. Hunt, 4 Sneed, 543; Whittier v. Dana, 10 Al- len, 326; Cummings v. Arnold, 3 Met. (Mass.) 486. 88 THE STATUTE OF FEAUDS. fendant was not bound.' The court said the whole promise must appear from the writing, and proceeded: "The letter, if read by itself, without reference to any previous conversations, would be a promise to be responsible for any B^lm of money, how- ever large, at any rate of interest, secured by any kind of mort- gage, on any 14nd, with any title. That, however, would be an unreasonable construction, and is not its true meaning; it evi- dently refers to previous conversations, in which these particulars are supplied. The whole promise, therefore, is not in writing, as the statute requires that it should be." So, where under certain shipping articles of two seamen, and under the word " sureties," a party signed his name, it was held he was not liable; because, while it appeared that he was a surety, it did not appear what his agreement was, nor for what he became surety." The court said: " The memorandum ought to state substantially what the under- taking of the surety is." The vsriting must identify, with reasona- ble certainty, both the contracting parties, but only the party sought to be charged need sign it.' Thus the defendant signed, and handed to T the following document : " Sir, I beg to inform you that I shall see you paid the sum of 8001. for the ensuing building which you undertake to build for T." He intended it to be handed by T as a guaranty to J, who was then negotiating with T to erect for him the building referred to. T having agTced with the plaintiff instead of J that the plaintiff should erect the building, deliv- ered the document to him without the defendant's knowledge or authority. The defendant afterward heard of and ratified this delivery. Held, the defendant was not liable, because the writing did not contain the name of the person for whom it was intend- ed. The court said: "It is essential to the validity of any such agreement, or memorandum thereof, that it should contain the names of both parties to the agreement. It is true that there is no necessity that both parties should sign it. * But it must still contain all the essentials of an agreement, and therefore 'Holmes I). Mitchell, 7 J. Scott, (N. Hamp. 157; Farwell v. Lowther, 18 S.) 861, per Williams, J. 111. 252; Nichols d. Johnson, 10 Conn. ^ Dodge V. Lean, 13 Johns. 508. 192; Wheeler v. Collier, Moo, & Mai. = Champion v. Plummer, 1 Bos. & 123; Webster v. Ela, 5 New Hamp. Pul. (N. R.) 252; Waterman v. Meigs, 540; Allen „. Bennet, 3 Taunt. 169; 4 Gush. 497; Jacob v. Kirk, 2 Moody Sheid v. Stamps, 2 Sneed (Tenn.) 172. & Rob. 221; Sherburne u. Shaw, 1 New WHOLE PEOMISE MCST BE IN WRITING. 89 inter alia the names of botli parties. * In this very case, sup- posing the guaranty to be valid, it might have been put into the ' hands of some person for whom the defendant never intended it, and an attempt might have been made on the one hand to enforce, and on the other to resist it, by parol evidence as to who was the person really intended.'" If it appears from the writing, with reasonable certainty, for whom it is intended, it is suflBcient. The payee of a promissory note, payable to bearer, signed the following guaranty on its back: "In consideration of * I here- by guaranty the payment of the within note." The court said a guaranty must indicate the person for whom it was intended, either by name, or as one of a class, and as the guaranty referred to the note, it should be read with it, and it was therefore payable to the bearer, whoever he might be, and was valid." With refer- ence to a general letter of credit, it has been said that it " is ad- dressed to any and every person, and therefore gives to any per- son to whom it may be shown, authority to advance upon its credit. A privity of contract springs up between him and the drawer of the letter, and it becomes, in legal effect, the same as if addressed to him by name.'" In such case the writer of the letter is liable to the party making the advances. It has also been held that the mere fact that the name of the plaintiff ap- pears in the writing is not suificient, unless such name also ap- pears from the writing to be that of the promisee, or party to whom the defendant is liable.* The subject matter of the con- tract must appear from the writing, but it may be expressed in general terms, and parol evidence is admissible to identify it.' 'Williams v. Lake, 2 Ell. & BU. 12 Mass. 154; Birckhead*. Brown, 5 349, per Cockbiim, C. .T. As to tlie Hill. 634; Carnegie v. Morrison, 2 matters treated of in this section, see Met. Mass. 381. more fully, Brown on Frauds, Chap. 18. * Bailey v. Ogfden, 3 Johns. 399; Van- ' Palmer v. Baker, 23 Up. Can. C. P. derbergh v. Yandenbergh, Law Rep. R. 302; to the same general effect, see 1 Bxch. 316. Thomas v. Dodge, 8 Mich. 51; Nevius ^Bateman v. Phillips, 15 East, 272; V. Bank of Lansingburgh, 10 Mich. Sale v. Darragh, 2 Hilton, (N. Y.) 184; 547. Hall V. Soule, 11 Mich. 494; Nichols 'Union Bank ». Costers' Exrs. 3 «. Johnson, 10 Conn. 198; Atwoodti. New York, 203, per Pratt, J. Hold- Cobb, 16 Pick. 227; Hurley v. Brown, ing to same effect, see Laurason ». 98 Mass. 545;McMurray«. Spicer, Law Mason, 3 Cranch, 492; Russell v. Wig- R. 5 Eq. 527; Baumann v. James, Law gins, 2 Story Rep. 214; Adams v. R. 3- Ch. App. 508; Horsey w. Graham, Jones, 12 Peters, 207; Duval v. Trask, Law R. 5 Com. P. 9. 90 THE STATUTE OF fEAITDS. § 68. Whether the consideration must appear from the writ- ing. — The common law required, as necessaiy to the validity of every contract not under seal, that it be supported by a sufficient consideration. It was just as necessary that there should be a consideration for the contract to pay the debt of another, after, as before, the passage of the Statute of Frauds.' The statute did not dispense with anything which was before essential to the validity of a contract; on the contrary, it added something in the case of a promise to pay the debt of another, by requiring it to be in writing, when before no writing was necessary. Under the por- tion of the statute now under consideration, an important ques- tion has arisen, which has been the occasion of great contrariety of decision ; the question being, whether or not it is necessary that the agreement, or memorandum, or note thereof, need express the consideration for the promise as well as the promise itself. It was firmly settled by the English courts that the writing must express the consideration for the promise,'' when the Mercan- tile Law Amendment Act was passed.^ Among other things this act provides that " no special promise to be made by any person after the passing of this act to be answerable for the debt, default or miscarriage of another person, being in writing and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit or other proceeding, to charge the person by whom such promise shall have been made, by reason only that 'Ban-ell v. Tnissell, 4 Taunt. 117; 297. The question was again directly Leonard v. Vredenburgh, 8 Johns. 29; presented in Saunders v. Wakefield, 4 faunders v. Wakefield, 4 Barn. & Aid. Bai^n. & Aid. 595, and the court ufaan- 695; Aldridge v. Turner, 1 Gill. & imously held that the consideration Johns. (Md.) 427; Tenny v. Prince, 4 must appear from the writing. After Pick. 385; Pillan v. Van Mierop, 3 that decision, the question was consid- Burr, 1663; Glark ». Small, 6 Yerg. ered settled. See Jenkins v. Reynolds, (Tenn.) 418. See on this subject, Krutz 6 Moore, 86; Id. 3 Broderip & Bing. V. Stewart, 54 Ind. 178. 14; Raikes v. Todd, 8 Adol. & Ell. 846; 'The leading case holding this doc- Sweet v. Lee, 3 Man. & Gr. 452; Mor- trine is Wain v. Warlters, 5 Bast, 10, ley v. Boothly, 3 Bing. 107; Bain- decided in 1804. The coraectness of bridge v. Wade, 16 Ad. & Ell. N. S. this decision was denied by Lord El- 89; Hawes v. Armstrong, 1 Bing. N. don in Ex parte Minet, 14 Vesey, 189, C. 761; James v. Williams, 3 Nev. & and Ex parte Gordon, 15 Vesey, 286, Man. 196; Cole o. Dyer, 1 Cro. & Jer. and was doubted in other cases. See 461; Clancy v. Piggott, 4 Nev. & Man. Phillipps V. Bateman, 16 East, 356; 496. Goodman v. Chase, 1 Bam. & Aid. ' 19 and 20 Victoria C. 97, sec. 3. WHETHEE WEITING MUST EXPEESS OONSIDEEATIOlir. 91 tlie consideration for such promise does not appear in writing or bj necessary inference from a'written instrument." While the Statute of Frauds has been generally re-enacted in the United States, it has not, in all cases, been done in the words of the orig- inal statute. In those states where the original wording is re- tained, some have decided that the consideration must, and others, that it need not, be expressed in the writing. In the states where the word " promise " has been coupled with the word "agreement," it is generally held that the writing need not ex- press the consideration.^ In several of the states the statute provides in terms whether or not the consideration shall be ex- pressed in the writing. It would probably subserve no useful purpose to attempt a review of the American cases, with reference to ascertaining on which side of this question the preponderance 'Of the states -where the word " agreement " is retained, as in the original statute, it has been held that the consideration must appear from the writing; in Greorgia, Henderson v. Johnson, 6 Ga. 390; Hargroves v. Cooke, 15 G-a. 321; in Indiana, Grego- ry V. Logan, 7 Blackf. 112 — (since changed by statute); in Maryland, Sloan V. Wilson, 4 Harr. & Johns. 322; Hutton«. Padgett, 26 Md. 228; Elliott V. Giese, 7 Harr. & Johns. 457; Bdelen V. Gough, 5 Gill. 103; in Michigan Jones V. Palmer, 1 Doug. 879; in New Hampshire, Underwood «. Campbell, 14 New Hamp. 393; Neelson v. San- bom, 2 New Hamp. 413; in New Jer- sey, Buckley v. Beardslee, 2 South. 572; Laing v. Lee, Spencer, 337; in New York, Sears v. Brink, 3 Johns. 210; Kerr v. Shaw, 13 Johns. 236; Castle V. Beardsley, 10 Hun. 343; in South Carolina, Stephens v- Winn, 2 Nott, & McC. 372; but see Lecat v. Tavel, 3 McCord, 158; and in Wiscon- sin, Taylor v. Pratt, 3 Wis. 674. On the other hand, it has been held that the consideration need not appear from the writing; in Connecticut, Sage V. Wi cox, 6 Conn. 81; in Maine, Levy J). Men-ill, 4 Greenl. 180; Gilligan v. Boardman, 29 Me. 81; in Massachu- setts, Packard v. Richardson, 17 Mass. 122— (since changed by statute); in Missouri, Bean o. Valle, 2 Mo. 103; Halsa V. Halsa, 8 Mo. 303; Little ?'. Nabb, 10 Mo. 3; in North Carolina, Miller v. Irvine, 1 Dev. & Bat. 103; Ashford v. Robinson, 8 Ired. 114; in Ohio, Reed v. Evans, 17 Ohio, 128; and in Vermont,, Smith v. Ide, 3 Vt. 290; Patchin v. Swift, 21 Vt. 292; Gregory v. Gleed, 33 Vt. 405. Where the word " promise '' is coupled with the word '■ agreement," it has been held that the consideration need not be expressed; in Alabama, Thompson V. Hail, 16 Ala. 204; in California, Baker v. Cornwall, 4 Cal. 15; Bvoy v. Tewksbuiy, 5 Cal. 285; Elhson v. Jackson, 12 Cal. 542; in Florida, Dorman v. Executor of Richard, 1 Florida, 281; in Kentucky, Ratliff ». Trout, 6 J. J. Marsh, 606; in Missis- sippi, Wren v. Pearce, 4 Smedes & Mar. 91 ; in Tennessee, Taylor v. Rosa, 8 Yerg. 330; Campbell v. Findley, 3 Humph. 380; Gilman v. Kibler, 5 Humph. 19; in Texas, EUett v. Brit- ton, 10 Tex. 208; and in Virginia, Colgin V. Henley, 6 Leigh, 85 92 THE STATTJTE OF FEAtTDS. of authority lies. It may be here remarked that when the writ- ing is under seal, no consideration need be expressed in it. The seal itself imports a consideration, and is sufficient to satisfy the statute.' § 69. Reasons why the consideration should appear from the writing — Observations. — One of the reasons given for holding that the consideration must appear from the writing is, that ac- cording to its strict legal meaning, the word " agreement " includes the whole contract between the parties, and among other things, the consideration as well as the promise; and that the words " memorandum or note thereof" relate to the word " agreement," and were intended to, and' do, dispense with nothing, unless, per- haps, matters of form. This seems to be a solid ground upon which to rest this interpretation of the statute. As already seen, it is generally held by the courts, even those which hold that the consideration need not be expressed, that all the other essential terms of the contract must appear from the writing. The consid- eration is not strictly a part of the promise of the party to be charged, but is something which moves from others, and is the inducement to him for making the proihise. The consideration is, however, a part of the contract, and if the word " agreement" means the same as the word " contract," then the original Statute of Frauds required that it should appear from the writing. An- other reason, much relied upon, is that if the consideration was allowed to be proved by parol, it would open the door to all the evils which the Statute of Frauds was designed to remedy. This is not true in point of fact. The agreement is in words; the con- sideration is usually something material, which is more suscepti- ble of proof, and less liable to mistake, than the words of the con- tract. There seems to be no more danger of perjury in allowing the consideration for the promise to pay the debt of another to be proved by parol, than in allowing the consideration for any other contract to be proved in the same way. The same objec- tion would exclude oral evidence from every case. The rule that the consideration must appear from the writing was a great hard- ship on the commercial world, and produced much more fraud than it prevented. Eecognizing this fact, the English parliament, and the legislatures of several of the United States, have express- 'Douglass V. Howland, 24 Wend. Smith (N. T.) 415; McKensie, ». Far- 35; Eosenbaum v. Gunter, 2 E. D. rell, 4 Bosw. (N. T.) 192. WHEN OONSIDEEATION SUFFICIENTLY APPEAES. 93 ly i^rovided by statute that the written promise to pay the debt of another, need not express the consideration, and the results, so far from being disastrous, have proved highly satisfactory. § 70. 'When the consideration suEBciently appears from the writing. — In the courts holding that the consideration must ap- pear from the writing, it is not necessary that such consideration be formally and precisely expressed. It is sufficient if it appear by necessary implication from the terms of the written instru- ment. The rule is thus well expressed: " It would undoubtedly be sufficient, in any case, if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it that such, and no other, was the consideration upon which the undertaking was given. Not that a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum, would be sufficient to satisfy the statute; but there must be a well-grounded inference, to be necessarily collected from the terms of the mem- orandum, that the consideration stated in the declaration, and no other consideration, was intended by the parties as the ground of the promise.' A guaranty was as follows: "I guaranty the payment of any goods, which J. Stadt delivers to J. Nichols." Held, it sufficiently appeared that the delivery of the goods was the consideration for the promise.^ The same thing was held when the words were as follows: "Sir, I will be accountable to you for the payment, within six months, of the 'Hawes v. Armstrong', 1 Bing. (N. vis v. Wilkina, 7 Mees. & Wela. 410; C.) 761, per Tindal, C. J. For cases White v. Woodward, 5 Man. Gr. & in whicli it was held that the conside- Scott, 810; Caballero v. Slater, 14 ration sufficiently appeared from the Com. B. (5 J. Scott) 300; Edwards v. writing, and which illustrate this sub- Jevons. 8 Man. Gr. & Scott, 436; Pace ject, see Grant v. Hotchkiss, 26 Barb. v. Marsh, 1 Bing. 216; Id. 8 Moore, (N. T.) 63; Boehm v. Campbell, 8 59; Johnston «. Nicholls, 1 Man Gr.& Taunt. 679; Shortrede ». Cheek, 1 Scott, 251; Church «. Brown, 21 New Adol. & Ell. 57; Gorrie v. Woodley, York, 815; Williams v. Ketchum, 19 17 Irish Com. Law Rep. 221; Bain- Wis. 281; Stead v. Liddard, 8 Moore, bridge ». Wade, 16 Adol. & BU. (N. 2; Russell'w. Moseley, 8Brod.&Bing. S.) 89; Hoad v. Grace, 7 Hurl. & Nor. 211; Dutchman v. Tooth, 5 Bing. (N. 494; Lysaght v. Walker, 5 Bligh, (N. C.) 577; Id. 7 Scott, 710; Emmott r. R.)l; M 2 Dow & Clark, 211; Broom Keams, 5 Bing. (N. C.) 559; Gotts- V. Batchelor, 1 Hurl. & Nor. 255; Old- berger v. Radway, 2 Hilton, (N. T.) ershaw v. King, 2 Hurl. & Nor. 517; 342. Staats V. Hewlett, 4 Denio, 559; ' Stadt v. LiU, 9 East, 348. Boehm v. Campbell, 3 Moore, 15; Jar- 94 THE STATUTE OF FRAUDS. seed order forwarded by my son " (naming him.) ' The same thing was held, when the guaranty was in these words : "Mr. Clark, of this place, will purchase a small stock of cloths and clothing of you, which I hope yon will sell to him cheap, and I have no doubt he will make you a valuable customer. I hereby guaranty the collection of any amount, which you may credit him with, not exceeding two thousand dollars."' In another case, the writing was as follows: " I do hereby agree to become surety for R G., now your traveler, in the sum of 500Z for all money he may receive on your account." Held, it suflGlciently appeared that the consideration for the undertaking was the con- tinuation of the traveler in the service of his employers. ' The same thing was held for the same reason when the words were: " I hereby guarantee to you the sum of 2501 in case Mr. P. should make default in the capacity of agent and traveler to you." ' Where the writing was: " I hold myself responsible to , * (plaintiffs) to the amount of $2,000, for any drafts they have accepted or may hereafter accept for John Latouche," it was held that it sufficiently appeared, that in consideration that the plaintiffs would accept for Latouche, the defendant agreed to be responsible.' In another case, the words were: "I agree to be security to you for J. C, late in the employ of J. P., for whatever you may entrust him with while in your employ, to the amount of 501." Held, the consideration sufficiently appeared. It might fairly be implied that J. C. had left one service, and that the guaranty was given in consideration of his being taken into another." The insertion of the words " for value received," in the writing, are a sufficient expression of the consideration to satisfy the statute.' "When a guaranty under seal expressed a consideration of one dollar in hand paid to the guarantor, it was 'Nash V. Hartland, 2 Irish Law Cas. (N. Y.) 326; Id. 2 Keyes, 589; Rep. 190. Cheeney v. Cook, 7 Wis. 413; Miller « Eastman v. Bennett, 6 "Wis. 232. v. Cook, 23 New York, 495; Douglass »Ryde». Curtis, 8 Dow. & Ry. 62. v. Howland, 24 "Wend. 35; "Whitney *Kennaway «). Treleavan, 5 Mees. & v. Stearns, 16 Me. 394; Coopers. "Wels. 498. Dedrick, 22 Barb. (N. Y.) 516; How- 5 Button V. Padgett, 26 Md. 228. ard v. Holbrook, 9 Bosw. (N. Y.) 237; ^Newbury v. Armstrong, 6 Bing. Lapham u. Barrett, 1 Vt. 247; Con- 201; H. 3 Moore & Payne, 509; Id. necticut, &o. Ins. Co. v. Cleveland R. Moody & Malkin, 389. R. Co. 41 Barb. (N. Y.) 9; Brewster v. 'Dayt'. Elmore, 4 Wis. 190; Mo- Silence, 8 New York, 207; Martin f. sher V. IIotchkiss,3 Abb. Rep. Omitted Hazard Powder Co., 2 Colorado, 596. ■WHEN OONSIDEEATION DOES NOT SUFFICIENTLY APPEAE. 95 held that the guaranty was valid and binding, even though the one dollar had never been paid. The court said, that in order to invalidate the guaranty, it must be shown, not only that the dol- lar had not been paid, but also that there was no agreement to pay it.' § 71. When consideration does not sufficiently appear, or consideration appearing is insufficient — Instances. — In a case where the writing was as follows : "Inclosed I forward you the hills drawn per J. A. upon and accepted by L. D., which I doubt not will meet due honor, but in default thereof, I will see the same paid;" it was held the consideration did not sufficiently ap- pear.'' The same thing was held when the words were: ''I here- by guaranty to pay "W. H., etc., $10 per month until the sum of $300, due by Messrs. B. & H., etc., shall be paid." ° When the undertaking was: " I hereby undertake to secure to you the pay- ment of any sums of money you have advanced or may here- after advance to * or on their account with you, commencing the 1st IsTovember, 1831, not exceeding 2,O0OZ.," it was held that the consideration for the guaranty of the past advances did not sufficiently appear. The court said: "The consideration must either appear on the face of them (guaranties) or by necessary in- ference from them, for unless this is the case parol evidence is not excluded. The terras of the instrument do not lead to any clear inference that the future advances were, as the declaration alleges, the consideration for guarantying the bygone advances." ' A guaranty was: " Bill Oct. 2d, 1844, $1,306.29. I hereby agree to guaranty the payment of U. & Co.'s note for the above amount, in favor of * payable nine mos. after date thereof." Held, it plainly expressed a past consideration, and was void for that rea- son.' ' Childs V. Bamum, 11 Barb. (N. T.) perior Ct.) 31 . For cases holding that 14. It has been held that if the con- the consideration is not sufficiently ex- eideratiou expressed was a fictitious pressed, or that an insufficient consid- one, it was sufficient. Happe v. Stout, eration is expressed, and illustrating 2Cal.460. this point, see Morley v. Boothby, .3 'Hawes v. Armstrong, 1 Bing. (N. Bing. 107; Id. 10 Moore, 395; James C.)761; Id. 1 Scott, 661. v. Williams, 5 Barn. & Adol. 1109; •'Palsgrave v. Murphy, 14 Up. Can. Church v. Brown, 29 Barb. (N.T.) 486; C. P. R. 153. Bushell v. Beavan, 1 Bing. N. C. 103; * Raikes». Todd, 1 Perry & Dav. 138; Allnuttj). Ashenden, 5 Man.& Gr. 392; Id. 8 Adol. & Ell. 846. Id. 6 Scott N. R. 127; Spicer v. Nor- ' Weed V. Clark, 4 Sandf. (N.Y. Su- ton, 13 Barb. (N.Y.) 542; Bell v. Welch, 96 THE STATUTE OF FEAUDS. § 72. When writing ambiguous, it may be explained by parol evidence. — When the words of the writing are ambiguous, and may be construed to express a past or a future consideration, parol evidence of tlie situation and surroundings of the parties at the time the contract was made, may be given in order to arrive at a true interpretation of the language employed by them. Thus a writing was: " As there was no time set for the payment of your account, and Mr. J. thought it would be an accommodation to him to have you wait until * if that will answer your purpose, I will be surety for the payment," etc: Held, the words " your account " were ambiguous, and might as well mean " your account to be made," as " your account already made; " that pa- rol evidence was admissible to show it was for an account to be made, and that the writing sufficiently expressed the considera- tion.^ So, where the words were: "In consideration of E. E. & Co. giving credit to D. G., I hereby engage to be responsible to, and pay any sum not exceeding 1201. due to E. K. & Co. by D. J.," parol evidence of extrinsic circumstances, was admitted to show that the words, " giving credit," were intended to apply to a certain credit which had been agreed upon, and it was held that the writing disclosed a sufficient consideration.^ When the words were: " In consideration of your being in advance " to the third party, parol evidence was admitted to show that at the time the writing was executed, no advance had been made.' The same thing was held when the words were: " In consideration of your having advanced," * and in both cases the consideration was held to be sufficiently expressed. Wiere the words were: "I hereby guaranty B's account with A," and it was shown by parol that there was a pre-existing account to which the words could apply, it was held that the guaranty was void for want of a sufficient consideration.^ 9 Man. Gr. & Scott, 154; Bewley ®. "Walrath v. Thompson, 4 Hill, Whiteford, Hayes (Irish Rep.) 356; 200. Wain V. Warlters, 5 East, 10; Lees v. ^ Edwards v. Jevons, 8 Man. Gr. & Whitoomb, 5 Bing. 34; James v. Wil- S.ott, 436. Hams, 3 Nev. & Man. 196; Sykes e. 'Haigh v. Brooks, 10 Adol. & Ell. Uixon, 9 Adol. & EU. 693; Bentham v. 309. Cooper, 5 Mees. & Wels. 621; Price v. *Go'dshede v. Swan, 1 Wels. Hurl. Richardson, 15 Mees. & Wels. 539; &Gor. 154. Golec. Dyer, 1 Gromp. & Jer. 461; Jen- ^ Allnutt v. Ashenden, 5 Man. & Gr. kins V. Reynolds, 3 Brod. & Bing. 14. 392. For cases further illustrating PAPERS BEAD TOGETHER TO EXPRESS CONSIDERATION. 97 § 73. When several papers may be read together to express consideration for promise. — It is not necessary that the consider- ation should be expressed in the writing which contains ,the promise. If it appears from any other writing which is so re- ferred to in that which contains the promise, as to become a part of it, this is sufficient. Thus, the plaintiff having pressed W for payment of a debt, the defendant, who was Ws attorney, sent to the plaintiff a bill accepted by W, at two months, enclosed in a letter in which the defendant said: "W, being disappointed in receiving remittances, and you expressing yourself inconvenienced for money, I send you his acceptance at two months." The plaintiffs refused to take the bill unless the defendant put his name to it. Whereupon the defendant wrote upon the back of the letter: " I will see this bill paid for W." The court said that reading all the papers together, the promise was that " in consid- eration of your forbearing to sue "W for two months, I will pay the bill if he fails to do so," and the defendant was held liable.* Certain parties executed a contract as agents for another, and at the same time executed a gxiaranty of the contract, but the guaranty did not express a consideration. Held, that the guar- anty and contract being contemporaneous, were all one transac- tion, and should be read together; and a sufficient consideration was expressed in the contract to sustain the guaranty.^ A, by letter, in which the consideration sufficiently appeared, entered into an agreement with B, and B became a party to the engage- ment by writing a few lines at the bottom of a copy of A's let- ter. C became guarantor for B to A by an indorsement on the back of this copy of A's letter, in which indorsement reference was made to the terms of the agreement on the other side. In an action on the guaranty, it was held that the reference in the indorsement to the terms of the agreement was a sufficient mem- orandum of the consideration to satisfy the Statute of Frauds.* this subject, see Batcher v. Steuart, 290; Bainbridge v. Wade, 16 Adol. & 11 Mees. & Wels. 867; Lysaght v. Ell. N. S. 89; D'WoIf v. Eabaud, 1 Walker, 5 Bligh. N. R. 1; Singley ». Peters, 476. Cutter, 7 Conn. 291; Shortrede v. » Emmott ». Keams, 5 Bing. N. C. Cheek, 1 Adol. & Ell. 57; Arms v. 559; Id. 7 Scott, 687. Ashley, 4 Pick. 71; Thornton r. Jen- « Jones v. Post, 6 Cal. 102. yns, 1 Man. & Gr. 166; Wood v. Beach, * Stead v. Liddard, 1 Bingham, 196; 7 Vt. 522; Steele v. Hoe, 14 Adol. & for further cases to similar effect, see Ell. N. S. 431; Smith ». Ida, 3 Vt. Simons v. Steele, 36 New Hamp. 73; 7 98 THE STATUTE OF FEAUDS. But where a valid, written contract to pay for stock deliverable at a future day was signed by the buyer, and at the same time, and as an express condition of the seller's making the bargain, the defendant indorsed on the same paper: "I guaranty the within contract," the guaranty was held void because it did not express a consideration. The court said the contracts could not be read together beca\ise they were not executed by the same parties. The one was a promise to pay absolutely, the other only in case of the default of the principal, etc' § 74. Whether guaranty of note must express consideration. — Whether the guaranty of a promissory note must, in order to be valid, express a consideration, has been differently decided by different courts, and sometimes, by the same court. Thus, at the time a note was made, and on the same piece of paper, a guaran- tor wrote under the note: "I hereby guaranty the payment of the above note." Held, the guaranty was void, because ■ it ex- pressed no consideration." The court said the two contracts were entirely different in their nature, and between different parties, and could not be read together. A party agreed to become sure- ty on an overdue promissory note, under seal, and because there was no room at the bottom of the note for his signature, indorsed .his name in blank on its back. He was held not liable.* The 'Court said: " The indorsement in blank of a note not negotiable is not such written evidence of a promise to pay as the statute i(.of frauds) requires." A guaranty indorsed on a promissory note at the time of its execution, as follows: "We guaranty the pay- jment of the within note," was held void, because it did not ex- -press a consideration.* Where a stranger to a note before its de- Wilson Sewing Machine Co. e.Schnell, Field, 6 Wis. 407; Otis v. Haseltine, 20 Minn. 40; Coldham v. Showier, 3 27 Cal. 80. Man. Gr. & Scott, 312; Hanford ». « Brewster v. Silence, 8 New York, ifiogers, 11 Barb. (N. Y.) 18; Adams 207. This case overruled Manrow v V. Bean, 12 Mass. 189; Brettel v. Wil- Durham, 3 Hill, 584, which held to the liams, 4 Wels. Hurl. & Gor. 623; Bai- contrary. Brewster v. Silence was fol- tey V. Freeman, 11 Johns. 221; Coe v. lowed and approved in Glen Cove Mut. Duffleld, 7 Moore, 252; Lecat t). Tavel, Ins. Co. v. Harrold, 20 Barb (N. Y.) 3MeCord (So. Car.) 158; Union Banks. 298. To similar affect, see Hunts. Coster's Exr. 3 New York, 203; Dor- Brown, 5 HiU, 145; Hall v. Fanner, 5 man v. Bigelow, 1 Fla. 281; Colboum Denio, 484. m. Dawson, 10 Com. B. (1 J. Scott) 765. = Wilson «. Martin, 74 Pa. St. 159. 'Draper v. Snow, 20 New York, *Lock v. Reid, 6 Up. Can. Q. B. R. 331; to simOar effect, see Hutson t). (0. S,) 295. SIGNATTJEE BY PAETY TO BE OHAEGED. 99 livery indorsed it in blank, it was held that he was a guarantor, and his guaranty was void, because it did not express a consider- ation." On the other hand, when a party was paid a money con- sideration for guarantying a note already executed by the princi- pals, and in execution of his contract to guaranty indorsed his name in blank on the back of the note, it was held that it suffi- ciently expressed the consideration." The court said that under the circumstances a guaranty or a note might have properly been written over the indorsement, and further: " It is in the nature of a note or bill, and equally so of an indorsement, even in blank, that it imports a consideration the same as a specialty." "Where a party indorsed a promissory note, as follows: " I agree to stand security for the payment of the within amount;" it was held that the note and indorsement should be taken together as one instrument, and that they sufficiently expressed the consider- ation.' A married woman executed a promissory note, which con- tained the words " for value received," and at the same time a stranger wrote below the note, " I hereby guaranty the payment of the above note on maturity." The court said that both instru- ments having been executed at the same time, should be consid- ered together, and showed a sufficient consideration ; but it would have been otherwise if they had been executed at different times.* § 75. Signature by party to be charged. — The statute requires that the writing shall be " signed by the party to be charged therewith, or some other person thereunto by him lawfully au- thorized." Even though the document is all written by the party to be' charged, it must still be signed by him,* but need not be sealed.^ "Whether sealing alone is sufficient is an open question, but Hhe better opinion seems to be that it is.' A mark by a ' Von Doren v. Trader, 1 Nevada, Barry v. Law, 1 Cranch (C. C) 77; Sel- 380. by». Selby, 3Meriv. 2; Bailey ». Og- ' Oakley v. Boorman, 21 Wend. 588. den, 3 Johns. 399; Hubert ». Turner, This case was subsequently disap- 4 Scott (N. R.) 486; Anderson v. Har- proved by the same court; see Brews- old, 10 Ohio, 399. ter V. Silence, 8 New York, 207. To « Worrall v. Muun, 5 New York, 229; same effect as Oakley v. Boorman, see Farris v. Martin, 10 Humph. (Tenn.) Puller V. Scott, 8 Kansas, 25. 495; Wheler v. Newton, 2 Eq. Gas. 'Dorman v. Bigelow, 1 Florida, 44, c. 5. 281. 'Lemayne v. Stanley, 3 Levinz, 1; * Nabb V. Koontz, 17 Md. 283. Worneford v. Womeford, Strange, ' Hawkins U.Holmes,! P. Wms. 770; 764; Gryle i>. Gryle, 2 Atkyns, 177; 100 THE STATUTE OF FEATJDS. marksman is a suflScient signature.' A printed signature is suffi- cient, especially when it is subsequently recognized by the party, or where part of the instrument is in his handwriting." A sig- nature by initials is sufficient," and the christian name may be denoted by an initial, or left out altogether." It is doubtful whether the signature of a person mentioned in the writing as a contracting party, but who on the paper professes to sign as a witness, is sufficient.' The signatm-e of a party to instructions for a telegraphic message accepting a written offer is sufficient." The signature may be at the top, in the body or at the foot of the writing. There is no restriction in this regard, except that the signature must be so placed as to authenticate the instrument as the act of the person executing it.' The rule has been thus well Grayson v. Alkineon, 2 Ves. Sr. 454; Smith V. Evans, 1 WUs. 313; Wright Wakeford, 17 Vesey, 454; Cherryc. V. Heming, 4 Wels. Hurl. & 6or. 631. ' Selby V. Selby, 3 Merivale, 2; Jack- son V. VanDusen, 5 Johns. 144; Hu- bert V. Moreau, 12 Moore, 216; Schnei- der V. Norris, 2 Maule & Sel 2816; Ba- ker V. Bering, 8 Adol. & Ell. 94; Tay- lor V. Dening, 3 Nev. & Per. 228; Morris V. Kniffin, 37 Barb. (N.Y.) 336; Barnard v. Heydrick, 49 Barb. (N.T.) 62. 'Saunderson v. Jackson; 3Esp. 180 Lerned ». Wannemacher, 9 Allen, 412 Schneider v. Norris, 2 Maule & Sel 286; Merritt v. Clason, 12 Johns! 102 Commonwealth v. Ray, 3 Gray, 441 VieUe v. Osgood, 8 Barb. (N. Y.) 130 Davis V. Shields, 26 Wend. 341; Pitts V. Beckett, 13 Mees. & Wels. 743. ' Salmon Palls Man. Co. v. Goddard, 14 How. (N. S.) 447; Gorrie v. Wood- ley, 17 Irish Com. Law R. 221; Palm- er V. Stephens, 1 Denio, 471; Jacob v. Kirk, 2 Moody & Rob. 221; Sanborn i-. Flagler, 9 AUen, 474; Sweet v. Lee, 3 Man. & Gr. 452. *Lobb V. Stanley, 5 Queen's B. 574. ^Welford v. Beezeley, 1 Ves. Sr. 6; Gosbell V. Archer, 2 Adol. & Ell. 500; Blore V. Sutton, 3 Merivale, 287; Coles V. Trecothick, 9 Vesey, 234; Hill v. Johnston, 3 Ired. Eq. (Nor. Car.) 432. 'Godwin V. Francis, Law Rep. 5 Com. P. 295; Dunning v. Roberts, 35 Barb. (N. Y.) 463. As to whether the name of the party must actually appear, or whether a designation by which he may be identified is sufficient, see Selby v. Selby, 3 Merivale, 2; Hu- bert V. Moreau, 12 Moore, 216; Baker V. Dering, 8 Adol. & EU. 94. 'Lemayne ». Stanley, 3 Levinz. 1; Id. Freeman, 538 ; Pessenden v.Mussey, 11 Cush. 127; Holmes v. Maekrell, 3 Com. B. (N. S.) 789; Wise v. Ray, 3 Greene (loa.) 430; Knight*. Crockford, 1 Esp. 190; McConnell v. Brillhart, 17 III. 354; Ogilvie v. Foljambe, 3 Meri- vale, 53; James v. Patten, 8 Barb. (N. Y.) 344; Morrison V. Tumour, 18 Vesey, 175; Yerbyt). Grigsby, 9 Leigh (Va.) 387; Bleakley *. Smith, 11 Simons, 150; Davis v. Shields, 24 Wend. 322; Propert v. Parker, 1 Russ. & My. 625; Draper v. Pattani, 2 Spear (So. Car.) 292; Western v. Russell, 3 Ves. & Bea. 187; Merritt v. Clason, 12 Johns. 102; Penniman v. Hartshorn, 13 Mass. 87; Williams v. Wood, 16 Md. 220; Hawkins v. Chace, 19 Pick. 502; 2 Smith's Leading Cas. p. 249. SIGNAT0EE BY AGENT. stated: " Although the signature be in the beginniug or midd^ of the instrument, it is as binding as if at the foot of it; the question being always open to the jury, whether the party, not having signed it regularly at the foot, meant to be bound by it as it then stood, or whether he left it so unsigned because he refused to complete it." ' The statute provides that the writing shall be signed by the "party to be charged therewith." If it is signed by the party to be charged, it is not necessary that it be signed by the other party to the contract, although as already shown, such other party must be designated by it." § 76. Signature by agent. — The writing may be signed by the party to be charged, or by " some other person thereunto by him lawfully authorized." Generally, any one who may be an agent for any other purpose, may be an agent for signing the writing required by the statute, but neither party can be the agent of the other for this purpose.' The same person may act as the agent of both parties. This is illustrated by the familiar case of an auctioneer, who, being the agent of the owner of property, sells it to the highest bidder. He thereupon becomes the agent of such bidder to complete the contract, and by enter- ing his name in the usual place as purchaser, binds him as such.* •Johnson v. Dodgson, 2 Mees. & Wels. 653, per Lord Abinger, C. B.; Saunderson v. Jackson, 2 Bos. & Pul. 238. 'Reuss V. Picksley, Law Rep. 1 Exch. 342; Clason v. Bailey, 14 Johns. 484; Laythoarp v. Bryant, 2 Bing (N. C.) 755; Morini!. Martz, 13 Minn. 191; Huddleston v. Briscoe, 11 Vesey, 583; McCrea v. Purmont, 16 Wend. 460; Martin v. Mitchell, 2 Jacob & Walk. 413; Douglass v. Spears, 2 Nott & McC. (So. Car.) 207; Hatton v. Gray, 2 Ch. Cas. 164; Barstow v. Gray, 3 Greenl. (Me.) 409; Seton v. Slade, 7 Vesey, 265; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Fowle v. Freeman, 9 Vesey, 351; Allen v. Bennett, 3 Taunt. 169; Penniman v. Hartshorn, 13 Mass. 87. 'Wright®. Dannah, 2 Camp. 203; Rayner v. Linthome, 2 Car. & Pa. 124; Sharman v. Brandt, 40 Law- Jour. N. S. 312; Farebrother v. Sim- mons, 5 Bam. & Aid. 333; Boardman ■v. Spooner, 13 Allen, 353; Robinson V. Garth, 6 Ala. 204; Bent v. Cobb, 9 Gray, 397. See, also, on this subject. Bird V. Boulter, 4 Barn. & Adol. 443; Ennis»; Waller, 3 Blackf. (Ind.) 472; Brant t>. Green, 6 Leigh (Va.) 16. * Morton v. Dean, 13 Met. (Mass.) 385; Kenworthy v. Schofield, 2 Bam.& Cress. 945; McComb v. Wright, 4 Johns Ch. 659; White v. Proctor, 4 Taunt. 209; Gill 'v. Bicknell, 2 Cush. 855; Simon v. Motives, 1 W. Black- stone, 599; Id. 3 Burrow, 1921; Cleaves V. Foss, 4 Greenl. (Me.) 1; Hinde v. Whitehouse, 7 East, 558; Anderson v. Chick, Bailey Ch. (So. Ca.) 118; Emmer- son V. Heelis, 2 Taunt. 38; Bndicott v. Penny, 14 Sm. & Mar. (Miss.) 144; Walker v. Constable, 1 Bos. & Pul. 306; Gordon v. Sims, 2 McCord, Ch. (So. Car.) 151; Coles v. Trecothick, 9 102 THE STATUTE OF FEAUDS. The same is true of public officers, who sell property at auction, such as sheriffs and . deputy sheriffs ' administrators ' commis- sioners of court, ' etc. The authority of the agent may be con- ferred in the same manner as the authority of any other agent, and even if he have no authority when he sign, his act may be- afterwards ratified by the principal by parol." It is not necessary that the agent who signs should be appointed by writing," unless the writing he executes is under seal, when his authority must also be under seal." It is not necessary that the agent should sign the name of the principal to the writing. If he signs his own name, parol evidence will be admitted to prove the agency, and charge the principal.' § 77. Pleading. — In a declaration in a suit against a surety or guarantor, it is not necessary to state that the promise was in writing.' This is founded on the general principle that where a V^sey, 234; Singstack v. Harding, 4 Harr. & Johns. 186; Buokmaster v. Harrop, 7 Vesey, 341 ; Smith v. Jones, 7 Leigh (Va.) 165; Stansfleld r. John- son, 1 Esp. 101; Adams v. McMillan, 7 Port. (Ala.) 73; Blagden v. Brad- bear, 12 Vesey, 466; Browne on Frauds, p. 386. ' Robinson v. Garth, 6 Ala. 204; Christie v. Simpson, 1 Rich. Law {So. Car.) 401; Ennis v. Waller, 3 Blackf. (Ind.) 472; Carrington v. Anderson, 5 Munf. (Va.) 32; Brent v. Green, 6 Leigh (Va.) 16. * Smith V. Arnold, 5 Mason (C. C.) 414. « Gordon v. Sims, 2 McCord Ch. (So. Car.) 151; Button v. Williams, 35 Ala. 503; Hart d. Woods, 7 Blackf. (Ind.) 568; but the power of an auc- tioneer, in this regard, is confined to those who act in that capacity; see Anderson v. Chick, Bailey Eq. (So. Car.) 118; Batturs v. Sellers, 5 Harr. & Johns. (Md.) 117; Sewall v. Fitch, 8 Cowen, 215. *Gosbell V. Archer, 2 Add. & Ell. 500; Holland v. Hoyt, 14 Mich. 238; Maclean v. Dunn, 4 Bing. 722. » Mortlock V. BuUer, 10 Vesey, 292; Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258; Rucker v. Cam- meyer, 1 Esp. 105; McWhorter v. Mc- Mahan, 10 Paige, 386; Wright v. Dsmnah, 2 Camp. 203; Lawrence v. Taylor, 5 Hill, 107; Greene v. Cramer, 2 Connor & Law. 54; Hawkins v. Chace, 19 Pick. 502; Clinan iJ.Cook, 1 Schoaies & Lef. 22; Ulen v. Kittredge, 7 Mass. 233; Graham ». Musson, 7 Scott, 769; Yerbyi!. Grigsby, 9 Leigh, (Va.) 387; Coleman v. Bailey, 4 Bibb (Ky.) 297; Johnson v. McGruder, 15 Mo. 365; Johnson v. Dodge, 17 111. 433. « Blood «. Hardy, 15 Me. 61. ' Wilson V. Hart, 7 Taunt. 295; Dykers v. Townsend, 24 New York, 57; Salmon Falls Ins. Co. v. Goddard, 14 How. (U. S.) 447; Curtis v. Blair, 26 Miss. 309; Yerby v. Grigsby, 9 Leigh (Va.) 387; Williams «. Woods, 16 Md. 220; Merritt v. Clason, 12 Johns. 102; McClonnell v. Brillhart, 17 111. 354; Williams i\ Bacon, 2 Gray, 387; Pinck- ney v. Hagadorn, 1 Duer. (N. Y.) 89. * Walker J). Richards, 39 NewHamp. 259; Lilley v. Hewitt, 11 Price, 494; Ecker v. McAllister, 45 Md. 290; Ma- cey V. Childress, 2Tenn. Ch. R. (Coop- er) 438; Marston v. Sweet, 66 New York, 207. PLEADING. 103 statute makes a writing necessary to a common law matter where it was not so before, in declaring on that matter it is not neces- sary to state that it is in writing, although it must he proved in evidence; but when the matter is created by statute, and a writ- ing is required, then the pleading must allege the existence of the writing. When it is pleaded that there was no writing, it may be replied generally that there was a writing without setting it out.' The fact that there was no writing need not be spe- cially pleaded, but may be taken advantage of under the general issue." ' Wakeman v. Sutton, 2 Adol. & Ell. Eastwood v. Kenyon, 3 Perry & Dav. 78. 276. 'Mines v. Scultliorpe, 2 Camp. 215; CHAPTEE III. OF THE LIABILITY OF THE SURETY OE GUAEANTOE GEN- EKALLY. Section. . 78 Construction of the contract Surety and guarantor favorites ia law, and are not chargeable be- yond the strict terms of their engagement .... Rule that surety is favorite ia law, and rules for construing con- tract must not be confounded. Parties may practically construe contract When consideration paid to guar- antor, not usurious. Measure of damages on guaranty of note When surety may be sued before principal. Property of surety may be first taken on execution against principal and surety When guarantor of collection lia-. ble. When mortgage on prop- erty of principal must be fore- closed before guarantor liable . When guarantor secondarily lia- ble. When creditor must use diligence against principal, and what will excuse its use . What is due diligence . When neither previous proceed- ings against principal, nor his insolvency necessary to charge guarantor . . . . . When a writing does not amount to a guaranty. Instances When writing does amount to guaranty. Instances Guaranty of payment "when due" of over due note, and of void certificate of deposit valid When surety for rent liable if ten- Section, ant holds over. Burning of house, and landlord getting in- surance, does not discharge surety for rent . . . .90 79 When surety concluded by result of litigation between other par- ties 91 When surety for debt liable for ad- ditional damages . . .92 Whether surety liable beyond penalty of his bond . . .93 When surety on note liable if it 81 is not discounted by paity to whom it is payable . . .94 When surety on note not liable if it is discounted by party other 82 than payee . . . .95 When guarantor on general guar- anty, or on guaranty addressed to another liable to person act- 83 ingonit 96 When guarantor not liable to any one except pai-ty to whom guar- anty is addressed . . 97 84 Surety for several not liable for 85 one. Surety for one not liable for several . . . .98 Surety for firm not liable if part- ners changed. Surety for per- 86 formance of award not liable if arbitrators changed . . .99 87 When surety for the acts of one person liable if such acts are performed by him and a part- ner 100 When obligation given by surety- 89 to firm binds him after change in firm 101 (104) OONSTEUCTION OF THE CONTEAOT. 105 ■ Section. Surety not liable beyond scope of his obligation. Instances . 102 Liability of surety or guarantor. Special cases .... 103 When surety cannot set up illegal acts of creditor or principal as a defense 104 When surety not liable for specific performance. Surety not charg- ed to exonerate estate of princi- pal. Other cases . . . 105 What payment by person indem- nified will charge surety. When surety liable for costs. Other 106 Surety not liable for greater sum than principal. Other cases . 107 Sureties on assignee's bond not li- able to those who defeat the as- signment. Principal cannot al- lege for error that surety is dis- charged. Other cases . . 108 When surety released if creditor and principal intermaary. Sure- ty not liable to party who pays debt at principal's request. Other oases . . . .109 When agreement to pay in good notes not guaranty that notes in which payment is made are good. Other cases . . . 110 111 112 Section. Surety for return of slave liable if death of slave caused by princi- pal. Other cases Surety for/ balance which may re- main due after sale of property not liable tiU completed sale made. Other cases . When guaranty not revoked by death or gfuarantor. When surety cannot reEeve himself from future liability by notice . 113 When death of guarantor revokes guaranty. When surety may terminate his habUity by notice 114 When surety may be sued jointly with principal . When recovery on common money counts cannot be had against surety. Surety for alimony can- not be compelled by motion to pay it. Other cases . When surety who is not liable at law will not be charged in equity 117 When equity wUl charge surety who is not liable at law . . 118 When new promise revives Ua'oil- ity of surety or guarantor . 119 Statute of Limitations. When new promise or partial payment by principal takes case out of statute as to surety . . . 120 115 116 § 78. Construction of the contract. — The first step towards ascertaining the liability of a surety or guarantor, is to determine the meaning of his contract. The rules which should govern in the construction of such contracts are therefore of great impor- tance. It has been said by several courts that a strict construc- tion in favor of the surety or guarantor should be adopted, and all doubts resolved in his favor.' The better and generally re- ceived opinion,^however, is that this contract should be construed the same as any other contract, and that the same rules should be applied to ascertain the true intention of the parties.^ It has 'Nicholson v. Paget, 1 Cromp. & Mees. 48; Id. 3 Tyr. 164. ' Kastner ».Winstanley, 20 Up. Can. Com. P. E. 101; White v. Reed, 15 Conn. 457; Locke ». McVean, 33 Mich. 473; Crist v. Burlingame, 62 Barb. (N. Y.) 351. 106 LIABILITY OF STIEETT GENEEALLT. been said that letters of credit and commercial guaranties should not be construed the same as bonds which are usually entered in- to with deliberation," but that they " ought to receive a liberal interpretation. By a liberal interpretation we do not mean that the words should be forced out of their natural meaning, but simply that the words should receive a fair and liberal interpre- tation, so as to attain the object for which the instrument is de- signed, and the purposes to which it is applied. We should never forget that letters of guaranty are commercial instruments, gen- erally drawn up by merchants in brief language; sometimes in- artificial, and often loose in their structure and form; and to con- strue the words of such instruments with a nice and technical care, would not only defeat the intentions of the parties, but ren- der them too unsafe a basis to rely on for extensive credits, so often sought in the present active business of commerce through- out the world." ' This whole subject has been thus ably summa- rized: "In guaranties, letters of credit and other obligations of sureties, the terms used and language employed are to have a rea- sonable interpretationj according to the intent of the parties, as disclosed by the instrument read in the light of the surrounding circumstances, and the purposes for which it was made. If the terms are ambiguous, the ambiguity may be explained by refer- ence to the circumstances surrounding the parties, and by such aids as are allowable in other cases, and if an ambiguity still re- mains, 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 expressions, the ambiguity be taken most strongly against him.' This certainly should be the rule, to the extent that the creditor has in good faith acted upon and given credit to the supposed intent of the surety. 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 language is to be ascertained in the same manner and by the same rules as in other instru- ' Bell V. Bruen, 1 How. (U. S.) 169, Isaac, 6 Mees. & Wels. 605; Mason v. per Catron, J. Pritchard, 12 East. 227; Hargreave v. 'Lawrence ». McCalmont, 2 How. Smee, 6 Bing. 244; Wood *. Priestner, (IT. S.) 426 per Story, J. Law Rep. 2 Bxch. 66; Hocy ». Jarman, '■ To this effect see, also, Bailey v. 39 New Jer. Law, (10 Vroom) 523. Larehar, 5 Rhode Is. 530; Mayer v. SUKETIES FAVOEITES IN LAW. 107 meats, and when the meaning is ascertained, effect is to he given to it."' § 79. Surety snd guarantor favorites in law, and are not chargeable beyond strict terms of their engagement. — A rule never to he lost sight of in determining the liability of a surety or guarantor, is, that he is a favorite of the law, and has a right to stand upon the strict terms of his obligation, when such terms are ascertained." This is a rule universally recognized by the courts, and is applicable to every variety of circumstances. Its existence has no doubt given rise to many of the expressions used by courts, when they have said that in construing the con- tract every intendment should be made in favor of the surety or guarantor, when in fact it should have no controlling influence at all on the construction of the contract. As illustrating the view of this rule held by the courts, it has been said: "Where any act has been done by the obligee that may injure the surety, the court is very glad to lay hold of it in favor of the surety." ° Again: "No principle is more iirmly settled in this state than this: that sureties may stand on the very terms of a statutory bond or undertaking. So clearly has this doctrine been an- nounced and acted upon, that it may be regarded as entering in- to the condition of such an undertaking, that it will not be ex- tended by the courts beyond the necessary import of the words used. It will not be implied that the surety has undertaken to do more or other than that which is expressed in such obliga- tion."^ Again: "It is now too well settled to admit of doubt, that a guarantor, like a surety, is bound only by the strict letter or precise terms of the contract of his principal, whose perform- ance of it he has guarantied ; that he is in this respect a favorite of the law, and that a claim against him is strictissimi jv/ris." " Again : " ISTothing can be clearer, both upon principle and authori- ty, than the doctrine that the liability of a surety is not to be ex- tended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed ' Belloni v. Freeborn, 63 New York, 'Law v. The East India Company, 383, per Allen, J. On same subject, 4 Vesey, 824. and to same, effect, see Douglass v. * Lang v. Pike, 27 Ohio St. 498, per Reynolds, 7 Peters, (U.S.) 118; Rus- Ashburn J. sell t). Clark's Exr. 7 Cranch, 69. 'Kingsbury i). Westfall, 61 New "People V. Chalmers, 60 New Tork, York, 356, per Gray, C. 154; Chase v. McDonald, 7 Harris & Johns, (Md.) 160. 108 LIABILITY OF SUEETY GENEEALLY. out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by. a change in the contract, or that it may be even for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it, and a varia- tion is made, it is fatal." ' The principle is clearly stated, and one of the reasons for it given as follows: "It is a well-settled rule, both at law and in equity, that a surety is not to be held be- yond the precise terms of his contract; and except in certain cases of accident, mistake or fraud, a court of equity will never lend its aid to fix a surety beyond what he is fairly bound to at law. * This rule is founded upon the most cogent and salutary prin- ciples of public policy and justice. In the complicated transac- tions of civil life, the aid of one friend to another in the charac- ter of surety or bail, becomes requisite at every step. Without these constant acts of mutual kindness and assistance, the course of business and commerce would be prodigiously impeded and disturbed. ' It becomes, then, excessively important to have the rule established that a surety is never to be implicated beyond his specific agreement." " § 80. Rule that surety is favorite in lavr, and rules for con- struing contract must not be confounded — Parties may practically construe contract. — The rules for construing the contract of a surety or a guarantor, should by no means be confounded with the rule that sureties ^nd guarantors are favorites of the law, and have a right to stand upon the strict terms of their obligations. There is no legal prohibition against entering into a contract of suretyship or guaranty. For any contract which it is legal to make, it is legal that a surety or guarantor shall become responsi- ble. In the construction of the contract of a surety or guarantor, as well as of every other contract, the true question is: What was the intention of the parties, as disclosed by the instrument read in the light of the surrounding circumstances? The contract of the surety or guarantor being just as legal as that of the prin- cipal, there is no good reason for holding that in arriving at the intention of the parties, one set of rules shall govern when the principal, and another when the surety or guarantor is concerned. ' Miller v. Stewart, 9 Wheaton, 680, » Per Kent, C. J . (afterwards Chan- per Story J. cellor), in Ludlow v. Simond, 2 Caineu' Caa. in Error, 1. CONSIDERATION TO GTIAKANTOE NOT USUEIOtTS. 109 To say that a certain set of words in a contract mean one thing when the principal is defendant, and that the same words in the same contract mean another thing, simply hecanse the defendant is a surety or guarantor, is absurd. The meaning of the words is not affected by the fact that the party sought to be charged is principal, surety or guarantor. On the other hand, a surety or guarantor usually derives no benefit from his contract. His object generally is to befriend the principal. In most cases the consid- eration moves to the principal, and he would be liable upon an im- plied contract, while the surety or guarantor is only liable because he has agreed to become so. He is bound by his agreement, and nothing else. No implied liability exists to charge him. It has been repeatedly decided that he is under no moral obligation to pay the debt of his principal.' Being then bound by his agree- ment alone, and deriving no benefit from the transaction, it is eminently jiist and proper that he should be a favorite of the law, and have a right to stand upon the strict terms of his obli- gation. To charge him beyond its terms, or to permit it to be altered without his consent, would be, not to enforce- the contract made by him, but to make another for him. The parties them- selves may give a practical construction to a guaranty, and that construction will be enforced. Where a guaranty was such that standing alone it would not have been held to be continuing, but the parties had for some time acted npon it as a continuing guaranty, it was held that it should be so construed. The court said: "We have found no case where the parties have been al- lowed to repudiate any such long standing and unequivocal prac- tical construction of their contract." " Evidence by the clerks of a party to whom a letter of credit was addressed, showing that he understood it to be a contimiing guaranty, and acted upon it as such, has been held competent in a suit against the writer of such letter. The court said the evidence was competent to show that advances had been made on the faith of the guaranty, if for no other purpose.^ § 81. When consideration paid to guarantor not usarious — Measure of damages on guaranty of note. — The honafide sale of ' Winston «. Fenwick, 4 Stew. & veer v. Wright, 6 Barb. (N. T.) 547. Port. (Ala.) 269; Harrison ». Field, 2 ^Per Rediield, C. J., in Michigan Washington (Va.) 136; Pickersgill v. State Bank v. Pecks, 28 Vt. 200. Lahens, 15 Wallace, 140; Pecker ». ' Douglass «;. Reynolds, 7 Peters (U. JuUua, 2 Browne (Pa.) 31; Van Der- S.) 113. 110 LIABILITY OF «UEETT GBNEKALLY. one's credit by way of guaranty, or by making a note for anoth- er's accommodation, though for a consideration exceeding the legal rate of interest, is not usurious if the transaction is not connect- ed with a loan between the parties. " As the law now stands, a man has as good a right to sell his credit as he has to sell his goods or his lands, and if he deal fairly he may take as large a price as he can get for either of them." ' However small the con- sideration may be which the guarantor receives, he is liable for the full amount of the debt guarantied, however large, if such be the scope of his contract. Thus, after a note for $7,868.80 had been executed and delivered by the principals, one Oakley, in con- sideration of $190, agreed to guaranty the payment of the note, and in execution of the agreement indorsed it in blank. Held, he was liable for the full amount of the note. The court said: " It is not for us to hamper Mr. Oakley or any other citizen in such a way as to preclude his making money by insuring the debts of his neighbors. It is enough that he has not been imposed up- on." ' When the guaranty is that there is a certain sum due on a note, the measure of damages is the value of a judgment for that amount, if one had been obtained against the makers. And in such case, when the makers are solvent but the note has been paid, the measure of damages is the full amount guarantied to be due.' § 82. When surety may be sued before principal — Property of surety may be first taken on esiecution against principal and surety. — Whether a surety or a guarantor becomes liable to suit immediately upon the default of, and before any steps are taken against, the principal, depends in every case upon the terms of his contract. When, by the terms of the contract, the obligation of the surety or guarantor is the same as that of the principal, then as soon as the principal is in default, the surety or guarantor is likewise in default, and may be sued immediately and before any proceedings are had against the principal.* This results from the fact that he had a right to contract such a liability, and having done so, he is bound by his engagement. In such case no demand 'More u.Howland, 4 Denio, 264, per ' Head v. Green, 5 Bissell, 311, per Bronson, C. J. Blodgett, J. " Oakley v. Boorman, 21 Wend. 588, * Penny v. Crane Bros. Man. Co., 80 per Cowen, J. To same effect, see 111. 244; Wilson v. Campbell, 1 Scam. Cooper V. Page, 24 Me. 73. (111.) 493; Redfield v. Haight, 27 Conn. SrEETT MAT BE STJED. BEFOEE PRINCIPAL. Ill on the principal is necessary." ITor is any demand on the surety or guarantor necessary. The bringing of the suit is a sufficient demand." Mor need unliquidated damages be liquidated by a previous suit against the principal.' Where the bond of a deputy treasurer to a treasurer provided that the treasurer should be " kept free from all incumbrances, blame, damage and loss," from any acts of the deputy, the deputy having made default, it was held that the treasurer had a right to recover on the bond against the sureties for such default, although he had not himself paid anything on account thereof.* When the surety or guarantor is in default, the creditor is not, before proceeding against him, obliged to exhaust a mortgage which he holds on the property of the principal for the payment of the same debt." " It is clearly competent for a cred- itor to secure himself both by a lien on property and the engage- ment of a third person undertaking for the payment by the debt- or. And the creditor is not obliged to proceed in equity upon his mortgage, but has the election either to seek a foreclosure or prosecute an action at law upon the promise of the debtor and his surety." * A suit against a surety on a note will not be de- layed because the principal has been adjudged a bankrupt, and the note has been filed by the payee in the bankruptcy proceed- ings, and a judgment rendered for his distributive share of the the assets. The surety can himself pay the note, and prove his claim against the estate of the principal.' Upon an appropria- tion by the sheriff of the proceeds of a sale of A's real estate, a judgment against A as the surety of B must be paid in pref- erence to subsequent judgments against A, although it appear 31; Smiths. Rogers, l4 Ind. 224; Ran- case of a surety on an executor's elaugh V. Hayes, .1 Vernon, 189; Aber- bond. crombie v. Knox, 3 Ala. 728; Garey v. * Janes v. Scott, 59 Pa. St. 178. Hignutt, 32 Md. 552; Geddis v. Hawk, *Baby ». Baby, 8 Up. Can. Q. B. R. 1 Watts, (Pa.) 280, overruling Hawk». 76; to same effect, see Wilson ». Stil- Geddia, 16 Serg. & Rawle, 23; Hoey v. well, 9 Ohio St. 467; Grant v. Hotch- Jarman, 39 New Jer. Law (10 Vroom) kiss, 26 Barb. (N. T.) 68. 523. » Jones v. Tincher, 15 Ind. 308; New ' CaiT V. Card, 84 Mo. 518 ; Mitchell Orleans Canal & Banking Co. v. Escof- V. WilUamson, 6 Md. 210. fie, 2 La. An. 830; Day v. Elmore; 4 'Byrne v. ^tna Ins. Co., 56 111. Wis. 190; Ranelaugh D. Ha-es, 1 Ver- 321; Hough V. Mtns. Life Ins. Co. 57 non, 189. 111. 818, which were cases of sureties ' CuUum v. Gaines, 1 Ala. 23, per on bonds of insurance agents; Wood Collier, C. J. V. Barstow, 10 Pick. 363, which was a ' Gregg v. Wilson, 50 Ind. 490. 112 LIABILITY OF SIJEETY GENERALLY. that the same judgment is a lien upon the real estate of B, which is a sufficient security for its payment. The remedy of the sub- sequent creditors of A is by subrogation. The holder of the old- er judgment has a legal right to his money at once, and will not be delayed to benefit other creditors." The State sold certain land to a party, who gave bond with surety for the purchase money. The certificate of purchase provided that in case of default in payment, the premises should " be immediately forfeit and revert to the State." Held, the surety might be sued for the whole pur- chase money remaining unpaid. The State had an option to en- force the payment of the whole of the purchase money, or to re- sell the land and hold the surety for the balance, if any, which might remain unpaid after such re-sale." After a joint judgment is rendered against principal and surety, the sheriff may collect all the money from the surety.' The holder of an execution issued on a judgment against a principal and two sureties, may cause it to be levied on land of one of the sureties, and there be- ing no fraud or collusion, it is no objection to thevalidity of such levy that it was made at the request of the principal and the oth- er surety and of the holder, who purchased the rights of the judg- ment creditor with money furnished by the principal and such other surety.* When the sureties on a tax collector's bond obli- gate themselves each for a specific sum, the State is entitled, in case the collector becomes a defaulter to a judgment against each surety for the whole amount for which he is bound, if the defal- cation is for so much, although the judgments against the sure- ties may amount to much more than the defalcation. If judg- ment was rendered against each surety for only his aliquot part of the defalcation, and one or more of the sureties proved insolv- ent, the State would lose so much. But no matter how much may be the aggregate of the judgments, no more than the amount of the defalcation can be collected from the sureties.' One of the " novels" of Justinian allowed sureties the right to require that before they were sued the principal debtor should, at their 'Neff's Appeal, 9 Watts & Serg. western Mut. Life Ins. Co. v. Allis,23 (Pa.) 86; see, also, on this subject, Minn. 337; Wiftham v. Crutcher, 2 Tynt V. Tynt, 2 Peers Wms. 542. Tenn. Ch. R. (Cooper) 535. ^ Rush V. The State, 20 Ind. 482. * Taylor v. VanDusen , 3 Gray, 498. ' Keaton v. Cox, 26 Ga,. 162; Eason ^ State v. Hampton, 14 La. An. 690; V. Petway, 1 Dev. & Bat. Law, (Nor. Stetson v. City Bank of N. 0. 12 Ohio Car.) 44. To similar effect, see North- St. 577. WHEN GUAEANTOE OF COLLECTION LIABLE. 113 expense, be prosecuted to judgment and execution. This rule prevails in most of the countries which liave adopted the civil law. According to the Eoman law before the time of Justinian, the creditor could, as he can by the common law when the surety is in default, apply to the surety first.' The common law rule, as above stated, prevails in England, in the United States, where not changed by statute, and in other countries which have adopted the common law. § 83. When guarantor of collection liable — When mortgage on property of principal must be foreclosed before guarantor liable. — While it is established that a surety or guarantor may be sued as soon as he is in default, it is often difficult to deter- mine when such default has occurred. It has been held that a guaranty of the collection of the debt of another, or that such debt is collectible, means that it is " collectible by due course of law," the same as if those words had been written in the guar- anty, and that legal proceedings must be had and exhausted against the parties liable when the guaranty was executed, be- fore a cause of action arises against the guarantor. These cases hold that the prosecution of such legal proceedings are a condi- tion precedent to any liability on the part of the guarantor, and that it makes no difference if the previous parties liable for the debt are, and have all the time been insolvent." The guarantor of collection is in such case liable for the costs incurred in the endeavor to collect the debt from the previous parties.' It is generally held that a guarantor that a debt is collectible is only liable in case it is not collectible, because otherwise he is not in default.* But it is the doctrine of a majority of the courts, and seems the better opinion, that the fact that it is not collectible may be shown by any other competent evidence as well as the fruitless prosecution of a suit against the previous parties liable for thg debt, and if such parties are actually insolvent, no suit 'See opinion of Kent, C. in Hayes ler, 23 Barb. (N. Y.) 628; Cady v. i>. Ward, 4 Johns. Ch. 123, and author- Sheldon, 38 Barb. (N. T.) 103; Burt ities there cited. v. Horner, 5 Barb. (N. IT.) 501; Shep- * Craig V. Parkis, 40 New York, 181, ard v. Phears, 35 Texas, 763. three judges dissenting; Mains v. ' Mosher ». Hotchkiss, 2 Keyes, (N. Haight, 14 Barb. (N. Y.) 76; Cumpston Y.) 589; Id. 3 Alb. Rep. omitted cas. V. MoNair, 1 Wend. 457; Precch v. 326. Marsh, 29 Wis. 649; Newell v. Vow- « Foster v. Barney, 3 Vt. 60. 8 114: LIABILITY OF SUEETY GENERALLY. against tliem is necessary to charge the guarantor.' Where the payee of a note, by an indorsement on its back, guaranties its collection, and the note is secured by a collateral mortgage, which is referred to in it, and which is assigned at the same time as the note, he is not liable upon the guaranty until resort has been had to the mortgage as well as to the note, for the collection of the money secured." So, where the defendants transferred to the plaintiffs two notes, with a lien on a canal-boat given to secure their payment, and also executed a guaranty of the notes, con- ditioned that the plaintiffs should nse all proper and reasonable means to collect them of the maker before resorting to the de- fendants on the guaranty, it was held that the lien on the boat must be exhausted before the defendant^ conld be sued on their guaranty.' In these two cases, according to the fair construction of the terms of the guaranties, the guarantors were not in default until the L'ens on the property of the principals were exhausted. They do not at all conflict with the cases which hold that where the surety or guarantor, by the terms of his contract, is in de- fault, he may be sued at once without the creditor being obliged to foreclose a mortgage for the same debt on the property of the principal. § 84. When guarantor secondarily liable — When creditor must use diligence against principal, and what will excuse its use. — A guaranty on the back of a note was: " I hereby guaran- ty the payment of the within note." Held, the guarantor was not primarily liable, and in order to charge him it was necessary that the creditor should be diligent in endeavoring to collect the note from the principal, unless diligence would have been un- availing." The same thing was held where the assignor of a non- negotiable note and a judgment guarantied the " payment" of the same:' Where the assignor of a bond covenanted to "stand 1 White ». Case, 13 Wend. 543; Peck « Barman v. Carhartt, 10 Mich. 338; «. Frink, 10 Iowa, 193; Brackett v. Johnson v. Shepard, 35 Mich. 115; no Rich, 23 Minn. 485; Stone v. Rocke- proceedings need be had under the feller, 29 Ohio St. 625; M'Doalt). Yeo- mortgage, however, if it is wholly mans, 8 Watts, (Pa.) 361; Thomas v. valueless, Cady v. Sheldon, 38 Barh. Dodge, 8 Mich. 51; Sanford r. Allen, (N. T.) 103. 1 Gush. 473; Dana v. Conant, 30 Vt. ^Brainard ». Reynolds, 36 Vt. 614. 246; Cooke v. Nathan, 16 Barb. (N. * Farrow v. Eespess, 11 Ired. Law Y.) 342; Jones v. Greenlaw, 6 Cold (Nor. Car.) 170. (,Tenn.)342; Cadyp. Sheldon, 38 Barb. ^genton v. aibson, 1 Hill, Law(So. (N. Y.) 103. ■ Car.) 56. WHEN DUE DILIGENCE EEQUIEBD. 115 security for the payment of it:"' Where the guaranty was "I do hereby assign and guaranty the payment of the within bond:"" Where two receipts of an officer for the collection of certain bills were assigned, as follows: " I trade the above to * for value received, and guaranty the payment of the same:"' And where under a note was written: " I do hereby guaranty the payment of the above note." ^ The payee of a note indorsed it as follows : " I hereby guarantee this note good until January 1st, 1850." Held, the effect of the guaranty was that the mak- ers of the note should be in a condition that payment of the note could be enforced against them till January 1st, 1850, if legal diligence was used.' Due diligence on the part of the creditor against the prior parties liable for the debt, or an excuse that they were insolvent, have been held necessary to charge the guarantor, when the assignment of certain notes stated: "We hereby agree to hold ourselves ultimately responsible with the above parties :" ' When the indorsement on a note was "to be liable only in the second instance:"' And when in the assign- ment of a bond the words were: "I * hold myself liable for the ultimate payment." ' "In the foregoing cases the fair import of the guarantor's contract was considered to be that he did not become liable to suit unless due diligence was used to collect the money from the prior parties, if they were solvent. If the prior parties were wholly insolvent, then the fair import of the contract was held to be that no such diligence was necessary. When, however, the con- tract expressly provides that the guarantor shall not be liable until after " due course of law " has been exhausted against the prior parties, there is no room for construction, and the exact diligence stipulated for, no matter how vain it may be, nor how insolvent the parties, must be used to charge the guarantor.' 'Rudy V. Wolf, 16 Serg. & Eawle 'Johnston*. Mills, 25 Texas, 704. (Pa.) 79. 'Pittman v. Chisolm, 43 Ga. 442. 'Johnston i>. Chapman, 3 Pen. & ^ Lewis d. Hoblitzell, 6 Gill & Johns. Watts (Pa.) 18. (Md.) 259. ^ Craig i>. Phipps, 23 Miss. 240. »Dwight v. Williams, 4 McLean, *Isett V. Hoge, 2 Watts (Pa.) 128. 581; Moakley ». Riggs, 19 Johns. 69; ^Hammond ». Chamberlin, 26 Vt. Eddy u. Stantons, 21 Wend. 255. The 406. , As to what is a guaranty of col- precise opposite of this has been held lection necessitating diligence against in Heralson v. Mason, 53 Mo. 211, up- the principal, see, Evans v. Bell, 45 on the ground that the principal being Texas, S53. insolvent, the law would dispense with. 116 LIABILITY OF SURETY GENEEALLY. The reason is, that the parties have so agreed, and the court can- not make a contract for them, which it would do if it dispensed with anything required by the contract. On the same principle, where a surety for the payment of rent stipulated that he should be notified of the tenant's default, it was held that he must be so notified, or he would not be bound, even tbough he was not in aify manner injured by want of the notice.' In cases where the guarantor is not liable unless diligence is used by the creditor against the previous parties, the guarantor may, by parol, waive the use of such diligence." "When a note is guarantied to be col- lectible, all prior solvent parties, such as an indorser,' and the estate of a deceased indorser,* must be exhausted before the guar- antor is in default. When the effect of the undertaking is to guaranty the solvency of the prior parties, and no particular kind of diligence is stipulated for in the contract, the fact that such prior parties are actually insolvent, constitutes a breach of the guaranty. In such case, no suit need be brought against such prior parties; and such insolvency may be. shown by any other competent evidence, as well as by fruitless legal proceedings against such prior parties.' If an execution, by virtue of which a levy upon all property of the prior parties might have been made, is returned by the proper officer nulla 'bona, this is prima • facie evidence of the insolvency of such parties ; but it is otherwise if the execution is issued by a justice of the peace, and real es- tate cannot, by virtue of it, be levied upon.' If the execution is thus returned within four days after it is issued, it is sufficient; for while a sale could not have been made in that time, property a fruitless prosecution. This is ndtli- must be exhausted. Aldrict v. Chubb, ing more nor less than to make a con- 35 Mich. 350. tract for the guarantor without his « Pittmau v. Chisolm, 43 6a. 442; consent, and enforce it against him. Johnston v. Mills, 25 Texas, 704; Ben- ' Corporation of Chatham v. Mo- ton v. Gibson, 1 Hill, Law (So. Car.) Crea, 12 Up. Can. C. P. R. 352; Hil- 56; Gates v. Kittrell, 7 Heiskell laiy ». Rose, 9 Phila. (Pa.) 1.39. ' (Tenn.)606; Lewis «.Hoblitzell,6 GUI. = Day«. Elmore, 4 Wis. 190; Ege & Johns (Md.) 259; MoClurg u. Fryer, V. Barnitz, 8 Pa. St. 304; Goodwin v. 15 Pa. St. 293; Ashford v. Robinson, Buckman, 11 Iowa, 308; contra, Mosier 8 Ired. Law (Nor. Car.) 114; Janes v. V. Waful, 56 Barb. (N. T.) 80. Scott, 59 Pa. St. 178; Farrow v. Res- i'Loveland v. Shepard, 2 Hill (N. pess, 11 Ired. Law (Nor. Car.) 170; Y.) 139; Dana v. Conant, 30 Vt. Huntress ». Patten, 20 Me. 28; Bulls. 246. Bliss, 30 Vt. 127; Wheeler v. Lewis, "Benton v. Fletcher, 31 Vt. 418. 11 Vt. 265. If there are are several principals, all » Gilbert v. Henck, 30 Pa. St. 205. WHAT IS DITE DILIGENCE. 117 could have been found to levy upon if there had been any avail- able for that purpose.' A promise by the guarantor to pay the debt, or giving his note for it, after the principal has failed to pay, is an admission that there has been no failure to use due diligence on the part of the creditor against the principal, and such diligence need not be otherwise proved in a suit against the guarantor.^ § 85. What is due diligence . — ^When the terms of the guar- anty and the circumstances of the parties are such that the cred- itor, in order to charge the guarantor, is bound to use due dili- gence against the parties previously liable for the debt, the ques- tion then arises : "What is due diligence?" "Due diligence generally, and in the absence of any special facts, would require suit to be instituted at the first regular term of the court after maturity, and the obtaining judgment and execution thereon, as soon as practicable by the ordinary rules and practice of the court.'" By another court, due diligence has been said to be that which a vigilant creditor employs, when he has no other security than the obligation of the principal debtor. If the creditor employs legal process against the principal debtor without delay, the prima facie presumption is that he has been duly diligent, but suing out process simply, and letting it run its course, may not be due dili- gence. If the creditor has special knowledge of how he can col- lect the money, he must collect it, even if more than the regular -process of suit is necessary." What is due diligence in each par- ticular case, will depend upon the circumstances of that case. A judgment against the prior parties liable for the debt, promptly obtained, and execution issued thereon, are prima facie evidence of due diligence. If, in such case, other facts exist, which show that due diligence has not been used, the burden of proving them is on the guarantor.' If the prior parties are without the state, but have property in the state, known to the creditor, which can be reached by attachment, the creditor must, in the exercise of due diligence, attach such property.* But if the creditor did not know, and by the use of reasonable diligence, could not have ' Day V. Elmore, 4 Wis. 190. * Hoffman v. Bechtel, 52 Pa. St. 190. ^Tiakum v. Duncan, 1 Grant's 'Backus i). Shipherd, 11 Wend. 629. Cas. (Pa.) 228; Teller J). Bemheim, 3 Aldrioli w. Chubb, 35 Mich. 350. See, Phila. (Pa.) 299. also, on this subject, Nichols v. Allen, 'Voorhies v. Atlee, 29 Iowa, 49 per 22 Minn. 283. Cole, C. J. "• « White v. Case, 13 Wend. 543. 118 LIABILITY OF SUEETY GENEEALLY. ascertained the facts which would have authorized an attachment, then he is not chargeable with negligence, if he does not cause an attachment to be issued.^ If the prior parties are solvent, but live in another state, and have no property in the state where the creditor resides, it has been held that the creditor need not, in the exercise of due diligence, pursue such prior parties in such other state.^ If the creditor causes an attachment to bo levied on the property of the principal, but fails to collect the money because the attachment is defectively served, he does not use due diiligence, and the guarantor is discharged.* A delay on the part of the creditor in bringing suit against the previous parties for upwards of six months;^ for seven months;' and for seventeen months ;° have been held to be unreasonable, and not the- exercise of due diligence. "Where a guaranty that certain notes then due were good, was made April 21st, 1841, and no demand was made on the parties primarily liable till July 29th, 1842, and no notice of default was given the guarantor till Feb. 29th, 1844, it was held that due diligence had not been used, and the guarantor was not bound.' A guaranty made April 10th, was as follows: "I warrant the within note good and collectible, until the 1st day of July." Suit was commenced by the holder, April 12th, and he could have obtained judgment in April, and the money could have been made, but in consequence of his neg- ligence he did not get judgment until September, when the money could not be made. Held, the guarantor was not bound.' The institution of a suit against the principal six days after the matur- ity of a note, and prosecuting it diligently to judgment, has been held to be due diligence.' The same thing was held where judg- ment had been obtained against the principal, and an execution against his property had been returned nulla hona two days after the suit against the guarantor was commenced." In the spring of 1860, a guaranty of a note due the first of the following Sep- tember was made. From the time the note became due, till 1865, the State was engaged in war, and no debts could be collected, ' ForeBt V. Stewart, 14 Ohio St. 246. " Burt v. Horner, 5 Barb. {N.T.) 501. ^ Towns V. Farrar, 2 Hawks (Nor. ' Beaker v. Saunders, 6 Ired. Law, Car.) 163. (Nor. Car.) 380. See, also, Mains ». 2 Beach v. Bates, 12 Vt. 68. Haight, 14 Barb. (N. T.) 76. * Craig V. Parkis, 40 New York, 181 . « wheeler v. Lewis, 11 Vt. 265. ^Pennimant). Hudson, 14 Barb. (N. ' Foster d. Barney, 3 Vt. 60. Y.) 579. 10 Woods v. Shei-man, 71 Pa. St. 100. PEOOEBDINGS AGAINST PEINCIPAL NOT NECESSAET. 119 and upon the ending of the war the princij)al became insolvent. No suit was brought upon the guaranty till 1867. Held, due diligence had been used, and tlie guarantor was bound.^ So, where suit was not brought against the principal for ten months, but he was all the time insolvent, it was held that the guaran- tor was chargeable, although tlie guaranty wag such that suit with- in a reasonable time must have been commenced against the prin- cipal. The insolvency of the principal in such case has a bearing upon the question as to what is a reasonable time.^ The question of due diligence, when the facts are not disputed, has been held to be one of law for the court.' It has also been held to be a question of fact for the jury." And again, it has been held to be a mixed question of law and fact, which must be passed upon by the jury under the instructions of the court.* This latter seems the most reasonable view, and the one best supported by legal analogy. § 86. When neither previous proceedings against principal nor his insolvency necessary to charge guarantor. — -When the terms of a guaranty of payment fix the time within which the payment shall be made, if the payment is not made within the time prescribed, there is a breach of the guaranty, and no steps need be taken against the principal, nor need his insolvency be shown, in order to charge the guarantor. This was held where the defendant gave an order for lumber, to be delivered to a third person which specified: "I will see you paid between this and the closing of the year:" " Where a bond due on a certain day was guarantied as follows: "For value received, we, the undersigned, guaranty the payment of the within bond, according to its terms:'" Where the guaranty was for the payment of a note "when due:" ° And where the promisee, in a negotiable note, payable in six months, sold it, having made and signed the fol- foUowing indorsement: "I guarantee the payment of the within note in six months." ' Where a state guarantied the " punctual 'KinyoQ v. Brock, 72 Nortli Car. (Pa.) 79; Jolinstx)u v. Chapman, 3 554. Pen. & Watts. (Pa.) 18; Woods v. Sher- ''Bashford v. Shaw, 4 Ohio St. 264; man, 71 Pa. St. 100. Gallagher ». White, 31 Barb. (N. Y.) = Backus v. Shipherd, 11 Wend. 629. 92. * Cochran v. Dawson, 1 Miles (Pa.) 'Burt V. Horner, 5 Barb. (N.Y.) 501; 276. Battle V. Blake, 1 Dev. Law, (Nor. ' Roberts ii. Riddle, 79 Pa. St. 468. Car.) 881. ' Campbell v. Baker, 46 Pa. St. 243. * Rudy V. Wolf, 16 Serg. & Rawle, » Cobb v. Little, 2 Greenl. (Me.) 261. 120 LIABILITY OF SURETY GENEEAXLY. payment of the interest" on certain bonds of a city, it was held that the state was liable immediately upon the default of the city, without any proceedings being had against it. The court said that while a guarantor was usually only liable after due diligence had been used to collect from the principal, yet the intention in each particular case must prevail, and in tbis case it was evident- ly the intention that the state should become liable immediately upon the default of the city.' A guaranty commenced as fol- lows : " For a valuable consideration I hereby guaranty the prompt payment o.f * " (certain notes — describing them), and concluded: "And I hereby obligate myself as firmly for the prompt payment thereof, as if I had signed the same;" held, the guarantor was liable immediately upon default by the principals." Where the payee of a negotiable note, after it was due, indorsed it as follows : " I guaranty the payment of this note, and costs, if any are made on it," it was be.ld that the guarantor might he sued at once, and it wg,s not necessary to proceed against the principal, or show his insolvency.' Where the indorsement of a note by the payee thereof was " I guaranty the payment of the within," it was held that no demand on the principal or notice of his default was necessary to charge the guarantor. The court said: "A guaranty of payment like the one in question is not conditional, but an absolute undertaking that the maker will pay the note when due." * It has also been held that the guaranty of " payment" of the debt of another, is broken as soon as the principal is in default without more, the distinction drawn being between a guaranty that the principal will pay and a guaranty that he is solvent. He may not pay and yet be solvent.' In all cases of guaranty of the payment of the debt of another, whether the guarantor is immediately liable upon the default of the prin- cipal without more, depends upon the terms of his contract as construed by the court." Where a note is transferred by a ' Arents v. Commonwealth, 18 Gratt. * Brown v. CurtiBS, 2 New York, (Va.) 750. 225, per Bronson, J.; see also, on this = Blaokbume- o. Boker, 1 Pa. Law subject, Heaton v. Hulbert, 3 Scaui. Jour. Rep. 15; for a case holding, (111.) 489. that if a party was liable at all he was ^ "Wren v. Pearce, 4 Sniedes & Mar. only secondarily liable, see Richwine (Miss.) 91; see, also, Bank of New York V. Seovill 54 Ind. 150. v. Livingston, 2 Johns, Cas. 409. "Burnham v. Gallentine, 11 Ind. Mn Pennsylvania it is held that a 295- contract of guaranty creates only a con- WHEN WKITING DOES NOT AMOUNT TO GUAEANTT. 121 debtor to a creditor in payment of a debt, with a guaranty that it is good as gold and will be paid when due, and the note is in fact worthless for want of consideration, the guaranty is broken as soon as made, and may be sued upon immediately.' A guar- anty of a lease was : " I hereby guaranty and become security for the faithful performance of * the party of the second part in the above indenture." Held, the guarantor was liable immediately upon the default of his principal.^ The same thing was held where, upon the back of a paper providing for the de- livery on demand of certain shares of stock, the following was written : " I hereby become security of * for the fulfillment of the within obligation." ° § 87. 'When a ■writing does not amount to a guaranty — Instan- ces. — ^A party wrote to others as follows : " I have the pleasure of recommending to you my friend * as a person in whom confidence can be placed. I am due him $400, but it is inconven- ient for me to raise the money just now, should you give him time on the machine till * it will confer a favor on me and you may rest assured that the money will be forthcoming at the prop- er time." A machine was sold on the strength of this letter. Held, the writer was not liable for the price of the machine. There was no promise to pay and no fraud.' Plaintifls had given credit to McO. for goods, but had not delivered them, whereupon the defendant wrote to the plaintiffs : " McO. wishes you to send down his stove, for he wants to put it up to-morrow morning. He is good for the amount he got from you." Held, the defendant was not liable for the goods sold. His letter contained no prom- ise to pay, and was a mere declaration that one who had obtained tingeut liability, whicli becomes abso- decided, from tbe fact tbat a person to lute by due and unsuccessful diligence whom a certain designation, such as to obtain satisfaction from the princi- " guarantor " applied, has been held to pal, or by circumstances that excuse the same liability as his class generally, diligence; Gilbert v. Henck, 30 Pa. St. the special terms of his agreement 205. In Illinois e c;uarantor is held to being overlooked, be liable immediately upon default of ' Koch v. Melhom, 25 Pa. St. 89. hia principal. Heaton f. Hulbert, 3 ''Smeidel u. Lewellyn, 3 PhUa. (Pa.) Scam. 489. Close attention should in 70. every case be paid to the terms of the ^Ashton i>. Bayard, 71 Pa. St. 189; contract of the person who becomes to similar effect, see Prentiss ». Gar- responsible for the debt of another, by land, 64 Me. 155. whatever name he may be called. ''Case ».Luse, 28' Iowa, 527. Cases have sometimes been improperly 122 LIABILITY OF SUEETT GENEEALLT. credit was good." Tlie defendant delivered the following letter to the plaintiff : " Let * have what goods he may want on four months, and he will pay as usual." Held, this was not a guaranty, but at most an expression of confidence, that the party purchas- ing would pay for the goods bought, and there being no ambi- guity about it, there was no occasion to resort to the surrounding circumstances, or the relations of the parties.'' Certain soldiers purchased goods of a merchant which were charged to the persons purchasing them, and bills were made out to them. Across the face of each bill was written the word " accepted," and the name of the brigade quartermaster was signed thereto. Held, the quartermaster was not liable for the bills ; the word " accepted" did not import a guaranty. If a guaranty had been intended, it would have been as easy to have written the word " guarantied," as the word " accepted." § 88. When a writing does amount to a guaranty — Instances. — A party wrote on the back of a promissory' note as follows : " I assign this note to * and indorse the prompt payment of it." Held, that the word " indorse " meant " guaranty " and that the party was bound as guarantor. The special indorsement was made either to restrict or enlarge the liability of the indorser. It was not used to restrict it. " The word [indorse] must be con- strued with reference to the words " prompt payment " in the same clause of the sentence, and when thus interpreted it is obvious that the word " indorse " was used in its broadest popu- lar sense, which is sometimes synonymous with the word ' guar- anty.' " * In- articles for the purchase of land the purchaser covenanted to pay for the same in notes " such as he would be responsible for." Held, this agreement amounted to a guaranty of such notes as he transferred in payment for the land.' A let- ter written by a party to merchants with whorn he had been in the habit of dealing, introducing to them his brother, who was a stranger, stating that the brother was going to their city to pur- chase goods, and requesting thern to introduce him to some of the houses with which the writer dealt, " with assurance that any contract of his will and shall be promptly paid," is a guar- 'EimbaJli). Roye, QRioliardsonLaw 'Ward ». Ely, 1 Dev. Law (Nor. (So. Car), 295. Car.) 372. As to what amounts to a i" Eaton w. Mayo, 118 Mass. 141. guaranty, see, also, Westphal v. "Hatch V. Antrim, 61 111. 106. Moulton, 45 Iowa, 163. ' Tatum V. Bonner, 27 Miss. 760. GUAEANTY OP OVEEDUE NOTE. 123 anty, and binds the writer to payment for the goods sold. The court said: "As a guaranty is regarded as a mercantile instru- ment, it is not to be interpreted by any strict technical rules of construction, but by what may fairly be presiimed to have been the intention and understanding of the parties." ' H lield a mortgage on G's land to secure a debt presently due, and C held a mortgage of the equity of redemption of the same land. G wrote to H, that he was " willing to agree to see him paid " $500, for G on account of G's mortgage to H, within sixteen months. Held, this was not a mere proposal for an arrangement, but, under the circumstances, a promise to pay. The court said the intention was plain, and " the courts never catch at words where the meaning is clear." " § 89. Guaranty of payment " when due" of overdue note and of void certificate of deposit, valid. — A note was made payable in three years from date, and after the expiration of that time a party covenanted that it should be paid " according to its tenor." It was contended that the contract was impossible of fulfillment, and not binding. But the court said: " The contract is to be con- strued with reference to the state of things then known to the parties as existing, and it being thus known to them that the day of payment of the note had already passed, the parties must be understood to be contracting with reference to a note overdue, and the guaranty was equivalent to a stipulation for the payment of a note payable on demand." ' The same thing was held when, on the back of an overdue note, a guaranty was indorsed for the payment of the note " when due." ' A guaranty of payment upon a negotiable note, over the signature of the indorser, is, in the absence of proof,- presumed to have been written at the same time as the signature.' Principal and surety signed a note pay- able to a bank ten days after date. The principal, without the knowledge of the surety, left the note with the bank as collat- eral for what he then owed or might thereafter owe it. Suit was brought on the note by the bank against the surety, and the only claim of the bank was for raoney advanced the principal after the note was due. Held, the surety was not liable. He ' Moore D. Holt, 10 Gratt (Va.) 284, 'Crockery. GUbert, 9 Cush. 131. per Lee J. *Gunn v. Madigan, 28 Wis. 158. 'Colgin p. HeiJey, 6 Leigh (Va.) 'GUmanw. Lewis, 15 Me. 452. 85, per Cabell, J. 124 LIABILITY OF SUEETY GBNEEAXLT. was by the face of the note only liable for its amount at the end of ten days, and this was a very different thing from standing as a continuing guarantor.' The party to whom a certificate of de- posit was issued, transferred it to another, who had no connection with and was ignorant of the circumstances attending its origin, with a guaranty of the payment thereof. The certificate was void for matters dehors its face. Held, the guarantor was liable for the amount of the certificate. The court said, the guaranty was in effect a representation that the instrument or claim was per- fectly valid, as well as a promise to pay it.° § 90. When surety for rent liable if tenant holds over — Burn- ing of house, and landlord getting insurance, does not discharge surety for rent. — A lessor by a lease commencing, " I agree to and with the said J to lease to him," demised to J certain prem- ises, and by the same phrase, agreed in the same instrument, at the option of J, to lease him the premises for another year upon the same terms and conditions. The defendant, by a covenant next following in the same instrumentj the stipulation for another year, agreed " that in case the said J shall neglect or refuse 'to pay the aforesaid rent in the manner aforesaid, I will pay the same within ten days thereafter;" held that the defendant was liable for the second year's rent as well as the first.' The same thing was held where a lease was for one year, but contained this provision: " This contract is to be renewed for three consecutive years, if it is fulfilled to the satisfaction of both parties," and the defendant, whose name was not mentioned in the lease, wrote at the bottom of it, " security for Frederick S. Gaylord," the lessee.* The plaintiff, by a lease which contained no stipulation for a renewal, demised to J a house for one year, at a certain rent, pay- able quarterly, and it was provided that J, before the expiration of the term, should give one quarter's notice of his intention to quit. The defendant, by a separate instrument, guarantied the 'Bank of St. Albans v. Smith, 30 'Deblois v. Barle, 7 Rhode Is. Vt. 148. 26. "Purdy V. Peters, 35 Barb. (N.T.) < Decker v. Gaylord, 8 Hun. (N. T.) 289. For acaseholdiugthatif aguar- 110; to same effect, see Dufau ». anty is made ultra vires, and the pa- " Wright, 25 Wend. 636. Holding guar- per guarantied afterwards, comes to antor of rent, reserved by defective the guarantor's possession, and is is- lease, liable for rent reserved if lessee sued by it with the guaranty uncan- occupies the premises, see Clark v. celed, the guaranty is binding, see Ar- Gordon, 121 Mass. 330. not V. Brie E.R. Co.. 67 New York, 315. FUEBTY CONCLUDED BY EESULT OF LITIGATION. 125 faithful performance of the covenants" of the lease; "also the punctual payment " of the rent. J did not give the notice, and held over. Held, the guarantor was not liable for any rent after the expiration of the first year.' A rented a liouse and lot to B, and became surety on the lease. The house was destroyed by fire, and A had insurance on it to its full value, which he got, and refused to rebuild. Held, that neither B nor C were discharged from the payment of rent by these facts. Having agreed to pay the rent, they were obliged to do so, even though the house was destroyed, and A was under no obligation to insure for their benefit." § 91. When surety concluded by result of litigation between other parties.^ If the effect of the obligation of the surety is that he shall be bound by the result of litigation between other parties, he is, in the absence of fraud and collusion, concluded by such re- sult. Thus, a party gave bond with sureties in a chancery suit, to abide the decree of the Superior Court. A decree was finally entered in said court, which the principal endeavored to have set aside, alleging fraud in obtaining the same. , Under the circum- stances of the case, it was held that the principal could have no relief, and that the sureties stood in no better position. The court said they had undertaken to abide the event of the suit, and must do so. The sureties stood in no better position than the principal, subject to the single exception that, if a judgment or decree had been procured by collusion between the principal and the creditor, the sureties would not be bound thereby." A party arrested for a debt fraudulently contracted, gave bond with surety, which provided " that if the fraud complained of shall be estab- lished, the said * security shall be liable for the debt-of the com- plaining creditor." The fraud was established by verdict and judgment, by which the amount of the debt was also established. Held, the surety was concluded by the judgment, even as to the amount of the debt." A lease provided that the time when the rent commenced should be determined by arbitrators, which was ' Gadsen v. Quackenbusli, 9 Rich, terminating the tenancy, even though Law (So. Car.) 222. See, also, on thia the tenancy is afterwards continued, subject. Brewer v. Knapp, 1 Pick. 332. See Tayleur v. Wildin, Law Rep. 8 * Kingsbury i>. Westfall, 61 New Exch. 303. York, 356. Holding guarantor for 'Riddle v. Baker, 18 CaL 295. rent, on tenancy from year to year dis- *Eeane v. Fisher, 10 La. An. 261. charged, if the landlord gives notice 126 LIABILITY OF SUEETT GENERALLY. done, and a certain amotint was thus ascertained to be due. There was a surety on the lease who became responsible for the rent for one year, according to the terms of the lease. The surety being sued for the amount found due by the award, it was held that in the absence of collusion or fraud, the surety was concluded by the award and could not show there was in fact no rent due.' A surety signed a bond with the claimant of some property. An- other party gave the surety a bond, conditioned to save him harm- . less from loss or damage on account of the bond he had executed. In a suit on the last bond against the maker thereof, the- plaintiff offered in evidence a writ and judgment, by which he had been adjudged to pay $100 on account of signing the first bond. Held, this was sufficient to authorize a recovery, and he was not obliged to show the evidence by which the judgment had been ob- tained .° § 92. When surety for debt liable for additional damages. — When such is the effect of his obligation, the surety for a debt is also bound for stipulated damages. Thus, a note provided for the payment of twenty per cent, per annum on its amount, as liquidated and agreed damages, if it was not paid at maturity. The following guaranty was written on the back of the note: " For value received, we guaranty the payment of the within note when due: " Held, the guarantors were liable for the damages, for they were as much a part of the note as any other.' So, sureties on a promissory note, which stipulates " that a reasonable sum, to be fixed by the court, for attorney's fees, shall be allowed and taxed as costs against the parties making the notes," are liable for such attorney's fees.* A statute provided that interest at the rate of ten per cent, riiight be contracted for; but if usury was contracted for, the creditor should only recover the principal sum, and judgment for ten per cent, against the debtor, and in favor of the State, should be entered for the benefit of the school fund. Suit was brought against a principal and surety on a note, and the surety set up and established usury: Held, judgment should be entered against both principal and surety, and in favor of the State, for the ten per cent. The statute did not except sureties, and the court would not.° A surety who guaranties the punctual 'Binsse v. "Wood, 37 New York, 'Gridley v. Capen, 72 111. 11. 626. ♦ First National Bank of Fort Dodge ''Spratlin». Hudspeth, Dudley, (Ga.) v. Breese, 39 Iowa, 640. 155. * Mcintosh ». Likens, 25 Iowa, 555. b LIABILITY BEYOND PENALTY 0¥ BOND. 127 payment, of " the interest " on a money bond in which there is no stipulation for interest, is liable for interest accruing after tlie bond becomes due. As there was no interest on the bond when the guaranty was made, the guarantor must have intended to become liable for the interest to accrue after the bond was due." § 93. Whether surety liable beyond penalty of his bond. — The surety on a bond cannot generally be held liable for any sum greater than the penalty thereof.'' A surety in a stipulation giv- en on the release from attachment of the property of a respon- dent in a suit in admiralty, cannot, where the stipulation is in a sum certain, be compelled to pay more than that sum, although the stipulation is conditioned to pay such sum as shall be award- ed to the libellant by the final decree in the suit.' "Where the surety on a sheriff's official bond has paid under judgments ren- dered on it the amount of the penalty, he can be held responsi- ble for no more. " The principle which limits the liability of the surety by the penalty of his bond, inheres intrinsically in the character of his engagement. He does not undertake to perform the acts or duties stipulated by his principal, and would not be permitted to control their performance, and could not where his principal was a public officer.'" When, however, the surety ia bound to the same extent as the principal, and is himself in de- fault, a sum in excess of the penalty of the bond, but not exceed- ing the legal rate of interest on the amount for the payment of which he is in default, may be recovered against him as damages for- the detention.* " It may be a reasonable doctrine that a sure- ty, who has bound himself under a fixed penalty for the payment of money, or some other act to be done by a third person, has marked the utmost limit of his own liability. But when the time has come for him to discharge that liability, and he neglects or refuses to do so, it is equally reasonable, and altogether just, that he should compensate the creditor for the delay which he 'Hamilton v. Van Rensselaer, 43 'Lewis v. Dwight, 10 Conn. 95: Barb. (N. T.) 117. States. Wayman, 2 Gill. & Johns. 'Clarkw. Bush, SCowen, 151; Fair- (Md.) 254; Harris v. Clap, 1 Mass. lie V. Lawson, 5 Cowen, 424; Oshiel v. 308; Judge of Probate v. Heydock, 8 DeGraw, 6 Cowen, 63. New Hamp. 491 ; Mayor and City 'Brown t>. Burrows, 2; Blatchford, Council of Natchitoches v. Redmond, 340. 28La. An. 274. ^Leggett V. Humphreys, 21 How. (D.S.) 66, per Daniel, J. 128 LIABILITY OF SURETY GENERALLY. has interposed. * The question, in short, is not what is the meas- ure of a surety's liability under a penal bond, but what does the law exact of him for an unjust delay in payment, after his liabil- ity is ascertained and the debt is actually due from him." ' It has been held that an official bond does not bear interest from the breach, or the demand, or the commencement of the suit for the penalty, and that the sureties cannot be held for more than the amount of the penalty.'' § 94. When surety on note liable if it is not discounted by party to whom it is payable. — When a surety becomes a party to a negotiable promissory note, payable to a particular person, with the design of raising money to be used by the principal for a cer- tain purpose, and the note is not discounted by the payee, but is discounted by another, and the money is applied to the purpose intended, it is generally held that the surety is liable for the note." To the objection that the surety has a right to choose his creditor, it is answered that if the payee had discounted the note, he might the next moment have transferred it to another, and so the surety cannot in such case choose his creditor, and as the object which the surety had in view has been accomplished, he is in nowise prejudiced, and is bound. A being principal, and B surety, exe- cuted a note payable to a bank, for the purpose of enabling A to raise money on it for his benefit. The bank refused to discount the note for A, and C being told by A that the bank would dis- count the note, himself advanced the money on it to A, and took it to the bank, which again refused to discount it. C then got the bank to discount the note for him, and afterwards B gave the bank notice not to discount it. Held, the bank must be consid- ered as having adopted the payment of the note made by C, and could sue on the note for O's use.' In another case, J being in- debted to P, gave him a note signed by himself and sureties, pay- able to a bank, with the agreement between J and P that P sliould get it discounted, and apply the proceeds, and if it could not be '^Brainard v. Jones, 18 JTew York, Blair, 4 Ala. 613; Bank of Newbury ». 35, per Comstook, J. Richards, 35 Vt. 281 ; Browning: v. ''State V. Blakemore, 7 Heiskell, Fountain, 1 Duvall, (Ky.) 13; Ward (Tenn.) 688. ®. Northern Bank of Kentucky, 14 B. "Keith «. Goodwin, 31 Vt. 268; Star- Mon. (Ky.) 283; Thrall ». Benedict, 13 rett V. Barber, 20 Me. 457; Bank of Vt. 248.' Middlebury v. Bingham, 83 Vt. 621; *Bank of Burlington v. Beach, 1 Planters' and Merchants' Bank v. Aiken (Vt.) 62. WHEN NOTE APPLIED TO P0EPOSB INTENDED. 129 discounted, it should be returned ; but tbis agreement was not known to the sureties. P could not get the note •discounted, but left it with the bank as collateral security for a debt he owed it, and so informed J, who made no objection ; after the note came due, it was by agreement between J and P, and without the sureties' knowledge, applied on J's indebtedness to P, and P thereafter prosecuted a suit which the bank had commenced for his benefit. Held, that as the note had accomplished the purpose intended, the sureties were bound.' A as jirincipal and B as surety, signed a note payable in six months to C, for the pv.rpose of enabling A to get cloth to the amount of the note from C. A got cloth from amoxinting to more than half the note, and not having enough of the cloth, D furnished the rest on an understanding between A, C aud D, that a.^o rata share of the note should inure to the benefit of D. Afterwards transferred the entire note to D, and he sued on it. Held, B was liable." Principal and surety executed a note with the expecta- tion that with it the principal would buy a yoke of oxen of A, and give the surety a mortgage on them for his indemnity. The principal did not buy the oxen of A, but bought a yoke of oxen of B, he knowing that the note had been given to buy the oxen of A, but not Imowing of the agreement about the mortgage. The oxen purchased from B did not come to the face of the note, and $6.25 was credited on the back of the note when it was de- hvered to B. Held, both the principal aud surety were liable on the note. It was used for the purpose intended, and the credit on its back was not an alteration of it any more than a Credit at any other time wo uld have been.' A bought a horse of B, and in payment for it gave his note, with two sureties, payable to a bank, or order. It was intended to raise money on the note to pay for the horse, but there was no evidence that the sureties knew the purpose for which the note was given. The bank re- fused to discount the note, and before it became due, the sureties notified the bank not to discount it. After the note became due, the bank indorsed it to B, who had always held it, and he sued upon it. Held, the sureties were liable. The Court said " It (the ' Bank of Montpelier v. Joyner, 33 ilar effect, see Perry ». Armstrong, Sft (Vt.) 481; to same effect, see Smith v. New Hamp. 683. Moberly, 10 B. Mon. (Ky.) 266; to sim- » Lyman v. Sherwood, 20 Vt. 42. »Laub V. Rudd, 37 Iowa, 617. 130 LIABILITY OF SUEETY GENEEALLY. note) has not followed, perhaps, the precise channel that was antic- ipated, but it has not been turned from a strictly legal channel," ' Principal and surety executed a note to a married woman for some land, and she alone made a deed for it, which was void. After- wards she died, leaving her property, by will, to her husband. The principal became insolvent, and after the note became due, discovering that his title was bad, applied to the husband, who made him a deed for the land. Held, the surety was liable on the note. The principal could not repudiate it, having received the consideration, and as the surety had executed the note for the purpose of purchasing the land, and it had been used for that purpose, he was bound.° The condition of a bond that the prin- cipal shall pay "all notes, acceptances, and other obligations whatever," given by him for his indebtedness, is applicable not alone to his several notes, but also to notes, if given for his con- templated indebtedness, in which other parties are joint promi- sors with him.' A made a note payable to B, and C executed ;the note with A as joint maker, the object being to raise money for A's use. B did not discount the note, nor indorse it, but D ■did advance money on it to A, and sued A and C on it in the .name of B. The court held C liable, and said the law was that iif signed the note with the understanding that it was to be passed to B, and no one else, then he was not liable. But if C signed as surety, with the general purpose of enabling A to raise money on the note, without limiting him as to the person to "whom he was to pass it, he would be liable to any one to whom it was passed." § 95. ■When surety on note not liable, if it is discounted by- party other than payee. — When a Surety signs a negotiable note with the principal for a particular purpose, and it is diverted from that purpose by the principal, and the party taking it has then knowledge of facts sufficient to charge him with notice of such diversion, the surety is not bound.' But if the party tak- ' Cross V. Rowe, 22 New Hamp. 77, der representations of the maker that per Eastman, J. it was payable to a bank, when it was 2 Campbell v. Moulton, 80 Vt. 667. in fact payable to an individual, con- ' Parham Sew. Mach. Co. v. Brock, stitutes no defense to the note in an ac- 113 Mass. 194. tion thereon by the payee, when it *Perkins v. Ament, 2 Head, (Tenn.) does not appear that he had anyknow- 110. The fact that a person was in- ledge of the alleged fraud. Wright duced to sign his name as surety to a v. Flinn, 33 Iowa, 159. negotiable note without reading it, un- ' Brown v. Taber, 5 Wend. 566. WHEN NOTE NOT APPLIED TO PURPOSE INTENDED. 131 ing the note have no such notice, express or implied, and take the note in good faith and for value, the surety vtdll be bound to him notwithstanding such diversion.' A party became surety on a note for $100, payable to a bank, for the purpose of pur- chasing lumber for the principal with $75 of the money, and pay- ing $25 of it to the surety and his partner for a debt due them from the principal. The bank never discounted the note, but an- other creditor of the principal, to whom he owed $22, took out that sum and gave the principal the balance in money. Suit was brought against the surety in the name of the bank, for the use of the party discounting the note, and it was held he was not lia- ble. " From the fact that the defendant was willing to become surety to a particular party to raise money for particular objects, it would be unreasonable to infer that he consented to assume a general liability to any party and for any purpose." The note had been diverted from the purpose intended, and the party who took it had notice thereof, from the fact that on its face it was payable to the bank." So, where principal and surety, for the purpose of raising money for the principal's family, signed a note payable to the order of a bank, which the bank refused to dis- count, and the principal gave it to a creditor of his to pay a pre- existing debt, it was held the surety was not liable. The fact that the note was payable to the bank was suiBcient notice to the cred- itor that the note was made for the purpose of raising money, and if he had inquired, he would have found that his taking the note would defeat the very purpose for which the surety signed.' Principal and sureties signed a note payable to a bank, with the understanding that it should be discounted at the bank. The note never was discounted by the bank, but was sold by the principal to one Cook, who sued it in the name of the bank. Held, the sureties were not liable; The court said the sureties might have been willing to be bound to the bank, but to no one else. " The reasons for such a preference may be perfectly satis- factory and prudential. Then, as the sureties * agreed to be bound to the bank only, and signed the note with the understand- ing that it was to be delivered to and discounted by the bank, and that they were not to be bound unless it should be so delivered and discounted, the sale and delivery of the note to Cook, without 'MoWilljams v. Mason 31 New 'Manufacturers' Bank d. Cole, 89 York, 294. Me. 188. » Russell V. Ballard, 16 B. Mon. (Ky.) 201. 132 LIABILITY OF SUEETY GENERALLY. their knowledge or assent, had no binding operation as to them." ' The same thing was held where the note was payable to a bank or order, and it was discounted by a third person, the fact that the note was payable to the bank being held sufHcient notice to such third person.'' It has been held that an accommodation drawer of a bill of exchange, made payable to a particular bank for the purpose of being discounted by the bank named, cannot be held liable on the bill to a third person who, after discount by the bank had been refused, took the bill from the principal for value, and also that such drawer cannot be held liable to the bank where it subsequently discounts the bill for such third person, with notice of the suretyship of the drawer.' In holding that a note by, principal and surety, made payable to a bank, but dis- counted by a third person, did not bind the surety, the court said: " He might be willing to lend his name to procure a loan from a party who would indulge him — who would advance to his prin- cipal the full face of the note — ^when he would be utterly unwil- ling to go security to one who was his personal enemy, or who would exact harsh terms or heavy interest of his principal." ' Again, it has been held, that if a note payable to a particular per- son, is signed by a surety and sold to another person, the surety is not liable thereon, without his express or implied consent, but such consent may be inferred from the course of business between the parties. This was held, " not upon the ground that there has been a change of contract prejudicial to him, but that there has been no completed contract at all; that there was no delivery to the only party to whom the note, by its very terms, was to be delivered, and therefore that the contract which was merely un- dertaken to be made, never took effect." « From the cases refer- red to, it appears there is some conflict of authority on this sub- ject. Unless the party suing on the note is the iona Jide ' Conway v. Bank of U. S. 6 J. J. 'Prescott v. Brinsley, 6 Cush. 233; Maxsh, (Ky.) 128, per Robertson, C. J. to same effect, see Allen v. Ayers, 3 The precise opposite of this was held, Pick. 298. in Farmers and Mechanics' Bank v. » Knox Co. Bank v. Loyd's Adnu. Humphrey, 36 Yt. 554; Briggs v. Boyd, 18 Ohio St. 853. 37Vt. 534. It seems that in these two < Clinton Bank v. Ayres, 16 Ohio,, last cases the surety was held liable on 283, per Birchard, C. J. a contract he never consented to make, » Chase v. Hathom, 61 Me. 505, per and which the taker of the note should Peters, J. have known he never consented to make. GUAEANTOE ON GENBEAL GTIAEANTY. 133 holder thereof for value, without notice, and has the right to sue thereon in his own name, there seems to be much force in the objection that the surety has a right to choose his creditor. A reason not already suggested, is, that while the payee, if he had discotmted the note, would have had the power to sell it to another, yet he might not have done so. In every instance, much will depend upon the form of the paper and the special cir- cumstances of the case. § 96. When guarantor on general guaranty, or on guaranty- addressed to another, liable to person acting on it. — Where a letter of credit is general, addressed to all persons, any one to whom it is presented may act upon and enforce it.' A letter of credit addressed to one with the design that it be shown to others to induce them to act upon it, may be sued on by such others in their own names, if acted upon by them." An action may be maintained by the several partners of a firm, upon a guaranty given to one of them, if there be evidence that it was given for the benefit of all.^ D, who was a merchant in the country, deal- ing in all sorts of merchaudise, being about to purchase a stock of goods in 'New York, received from A, who had been his partner, a guaranty addressed to no person named, by which A agreed to be responsible for what goods D might purchase in New York: Held, A was liable to every person from whom D pur- chased goods in pursuance of the guaranty; that the guaranty was not limited to the first person who sold goods on its credit; and that A was liable for goods sold on the credit usual in such cases.' Defendant signed a letter of credit addressed to F, as follows: " As you request, we are willing to help you in the pur- chase of a stock of goods. We will, therefore, guaranty the pay- ment of any bills which you may make under this letter of credit in Baltimore, not exceeding fifteen hundred dollars:" Held, that any person advancing goods to F, upon the faith of the guaranty, could maintain an action thereon against the defendant as guaran- tor.° A letter of credit was as follows : " James McElroy , Dear Sir : ' Birckhead v. Brown, 5 Hill (N. T.) ^Garrett v. Haudley, 4 Bam & Cress. 634; affirmed on error, 2 Denio. 375. 664. See, on this subject, Wheeler v. May- *Lowry v. Adams, 22 Vt. 160. field, 31 Texas, 395; Mayfield v. 'Griffin v. Rembert, 2 Richardson, "Wheeler, 37 Texas, 256. N. S. (So. Car.) 410. To the same ' Lonsdale v. Lafayette Bank, 18 effect, see Manning v. MiUs, 12 Up. Ohio, 126. Can. Q. B. R. 515. 134: LIABILITY OF SUEETY GENEEALLT. Mr. John Ticlienor is going to the city to purchase goods. * I will guaranty tlie payment of such debts as he may contract for the purchase of goods on credit." McElroy was at that time a clerk in a store, but had no store of his own. Tichenor bought goods from four different houses on the strength of the guaranty, the whole amounting to a less sum than that mentioned in the guaranty. Pleld, the guarantor was liable for all the bills. The court said it was apparent from the face of the guaranty that McElroy was not expected to furnish the goods. " It is a general letter of credit addressed through McElroy, a common friend, to the merchants in the city."^ Defendant addressed to J. Y. & Co. the following guaranty: " In consideration of your filling the orders for goods from your Birmingham house of J. C. & Co., say the spring importations, I hereby hold myself responsible for and guar- anty the payment of the same to you." J. Y. & Co. were the agents in New York for the Birmingham house referred to. The goods hav- ing been furnished to J. C. & Co., it was held that the Birming- ham house could sue on the guaranty, if intended for their bene- fit, and whether so intended might be proved by parol." A guaranty was as follows: " Captain Charles Drummond: Dear Sir: My son William, having mentioned to me th-at inconse- quence of your esteem and friendship for him, you had caused and placed property of your and your brother's in his hands for sale, and that it is probable from time to time you may have considerable transactions together ; on my part I think proper to guaranty to you the conduct of my son, and shall hold myself liable, and do hold myself liable, for the faithful discharge of all his en- gagements to you, both now and in future. George Prestman." Held, this guaranty extended to and covered a debt incurred by "William Prestman to Charles Durand, and his brother, Kichard Durand, as partners, it being proved that the transactions to which the letter related were with them as partners, and that no other brother of Charles Durand was interested therein. The court said, .that according to the ordinary construction of the words of the guaranty, they were intended to apply to a partner- ship liability.' In all these cases the guaranty, although ad- dressed to no one, or to the purchaser, or to a third person, or to ' Benedict v. Sherill, Lalor'a Sup. to « Van Wart v. Carpenter, 21 Up. Can. Hill & Denio, 219. Q. B. R. 320. ' Drummond v. Prestman, 12 Wheaton, 515. GUAEANTOE ONLY LIABLE TO PAETT ADDEESSED. 135 one of several, was held to be intended for the party advancing upon it, and the guarantor was for that reason held liable. § 97. When guarantor not liable to any one except party to whom guaranty is addressed. — Usually a guaranty when addressed to a particular party, can only be acted upon and enforced by such party.' A guaranty was on its face addressed to "Col. Smith & Pilgrim," but on its back it was addressed to Smith only. The day previous to the date of the letter the partnership of Smith & Pilgrim was dissolved, and Smith alone sold the goods. Held, the guarantor was not liable. The face of the guaranty only could be considered, and not the address on the back. As there was no ambiguity about the guaranty, parol evi- dence could not be received to vary it.' A letter of credit was addressed to A. After the date of the letter, A entered into partnership with B, and A & B furnished the goods. Held, the writer of the letter was not liable for the goods so furnished. A's manner of doing business may have been different from that of the firm, or the writer of the letter may have expected favors from A, which the firm would not grant him.' In another case, in which the same thing was decided, the court said: " It is a case of pure guaranty, a contract which is said to be stnotissimi juris, and one in which the guarantor is entitled to a full dis- closure of every point which would be likely to bear upon his disposition to enter into it. * He has a right to prescribe the exact terms upon which he will enter into the obligation, and to insist on his discharge in case those terms are not observed. It is not a question whether he is harmed by a deviation to which he has not assented. He may plant himself upon the technical objection, this is not my contract, non in haeo foedere veni."* A of JS'ew York gave a letter of credit to B, addressed to 0, in Albany, requesting him to deliver goods to B on the best terms, to a certain amount. C, instead of delivering the goods himself, gave B a letter to D, in 'Taylor v. Wetmore, 10 Ohio, 490; see Stevenson v. McLean, 11 Up. Can. Sleeker v. Hyde, 3 McLean, 279. C. P. R. 208; Allison v. Eutledge, 5 * Smith V. Montgomery, 3 Texas, Yerg. (Tenn.) 193; Bussier ti. Chew, 5 199. Phil. (Pa.) 70. A letter of credit ad- ' SoUee V. Meugy, 1 Bailey Law (So. dressed to P. & Co. will not authorize Car.) 620. advances by P alone, after the firm is ^Bams V. Barrow, 61 New York, dissolved, Penoyer i. Watson, 16 39, per Dwight, C; to same effect, Johns. 100. 136 LIABILITY OF STJEETY GENEEALLY. Geneva, requesting him to deliver goods to B to the same amount, and engaging to be responsible. D delivered the goods to B. In an action by C against A, for the amount, it was held he was not liable. A had the right to stand on the terms of his contract, and, moreover, D may not have given B as good terms, or sold the goods as cheap as would have done.' Two firms, composed of the same members, were doing business in the same city, but in different parts thereof, the name of one firm being Taylor, Gil- lespie & Co., and that of the other David B. Taylor & Go. A party knowing these facts, gave a letter of credit addressed to "Messrs. Taylor & Gillespie," and the firm of David B. Taylor & Co. gave credit on it. Held, the guarantor was not liable. The guaranty was intended for Taylor, Gillespie & Co., and the other firm could not recover on it. A partnership con- sists of something besides its individual members. It has its stock in trade, place of business, books, bills, papers, accounts, etc." A letter of credit purported to bind the guarantors to " any person in Macon, Georgia, who may feel disposed " to advance goods. W^ithout the writer's consent, this was changed by insert- ing Griffin in place of Macon, and the goods were bought in Griffin. Held, the guarantors were 'not bound.' A mortgage was given to secure the debt of a third party to the extent of $800, so long as the creditor should continue to sell goods to such third party. Subsequently, the creditor transferred his business to other persons, with whom the debtor continued to deal for some time. During the course of such dealing, the debtor paid in more than sufficient to cover the amount of the mortgage. Held, the payments must be applied to the oldest items of ac- count, and that the mortgage was discharged." A guaranty com- menced: " C. C. Trowbridge, Esq., President, Detroit, Mich.," and there was no further designation of the party addressed; money was advanced on the guaranty by the Michigan State Bank, of which Trowbridge was president. Held, it might be shown by parol that the guaranty was intended for the bank. The court said that a guaranty follows the general rule of law with refer, ence to simple contracts, " which is that they may be sued either in the name of the nominal or of the real party, * and in the 1 Walsh V. Bailie, 10 Johns. 180. » Johnson v. Brown, 51 Ga., 498. ^ Taylor v. McGlung's Exr. 2 Hous- " Eoyal Canadian Bank v. Payne, 19 ton, (Del.) 24. Grant's Ch. R. (Canada) 180. SUEETY FOE SEVEEAL NOT LIABLE EOE ONE. 137 present case, the letter of credit being addressed to the person as president, and the showing him president of the plaintiffs' bank, and of no other institution, renders it certain that it was intended for the plaintiffs' benefit." ' • § 98. Surety for several not liable for one — Surety for one not liable for several. — The sureties on a bond conditioned that the principal shall pay for all purchases made by him from the obligee, are not liable for purchases made from the obligee by a partnership of which the principal has subsequently become a member.'' A wrote to B as follows : " Anything you can do for the bearer, Major S. M. ]S"eill, whom I introduce as my friend, will be done for me, he being a merchant in Clinton. P. S. If you should accept for Mr. JSTeill for one thousand dollars, I will be bound by this note." On the strength of this, B guarantied two drafts of Hardesty & ]!^eill. Held, A was not liable for such guar- anty. A " might have been willing to become the security of Neill, and not of Hardesty and 'NeiVt. The engagement was personal as to Neill." ° The defendant executed a bond as surety to an insur- ance company for the fidelity of A, who was appointed an agent of the company at Adelaide, and who was about to, and after- wards did, enter into partnership (as merchants) with B, also an agent of the company at that place. The condition of the bond was, that A should well and truly account for all money received by him. Held, the defendant was not, under this bond, respon- sible for money received by the firm A & B, notwithstanding he was aware at the time he signed the bond that A was about to become B's partner.* A bond given by the defendant to the plaintiff, recited that A had been appointed agent for the plain- tiff, and was conditioned for A's good behavior. At the time the bond was given the defendant knew that A was to be employed only as a partner with B. Afterwards A & B received money, as partners, for which they did not account. Held, the defend- ' Michigan State Bank v. .'Pecks, 28 admissible. Sniitli v. Montgomery, 3 Vt. 230, per Eedfield, c". J. For Texas, 199: other cases where parol evidence ^Parham Sew. Mach. Co. v. Brock, was held admissible, see Wads- 113 Mass. 194 ; to same effect, see worth V. Allen, 8 Gratt. (Va.) 174; Shaw v. Vandusen, 5 Up. Can. Q. B. .Garrett v. Handley, 4 Barn. & R. 353. Ores. 664; Van Wart ?). Carpenter, 21 'Bell v. Norwood, 7 Louisiana (4 Up. Can. Q. B. R. 320; Drmnmond v. Curry) 95, per Bullard, J. Prestman, 12 Wheaton, 515. If there *Montefiore v. Lloyd, 15 3. Scott is no ambiguity, parol evidence is not (N. S.) 203. 138 LIABILITY OF SUEETY GENERALLY. ant was not liable for the money so received by A & B. " When a party makes himself surety for the conduct, not of A & B, but of A, the stronger proof you give that he knew the relation in which A and B stood to each other, the stronger you make the inference arising from his mentioning only A.'" A guaranty for goods to be sold to a firm will not cover advances made to one member of the partnership after its dissolution.' If a guaranty is given to a partnership, and one of the members dies,' or there is a change in the membership of the firm in any other way,' the guaranty will not cover any advances which are afterwards made. A, B and were partners, as bankers, and their partner- sliip articles provided that, if any one of them died, the legal representatives of such one might take his place in the business. D agreed to become responsible "for all sums of money, not exceeding £20,000, which were then, or should afterwards become due (from E) to A, B and 0, and the survivors, or survivor, of them, or the executors or administrators of such survivor." A died, and his legal representative became a member of the firm. Held,' D was not liable for any advances made to E after the death of A." A bond recited that A and B were bankers, at Sunderland, and was conditioned that they would remit to plain- tiff all such sums as they, " or either of them," should draw ou plaintiff. A died, and B afterwards drew bills. Held, the surety on the bond was not liable for such bills. From the whole instrument, the intention appeared to be to become responsible for bills which the two partners, or one of them, during the existence of the partnership, should draw.' But where a party agreed to guaranty such notes as should be indorsed by a firm, and the firm was dissolved, and one of the partners was, by power of attorney, authorized by the others to transact any remaining partnership business, it was held, the guar- antor was liable for indorsements made by such partner in the firm name in closing up the partnership business.' 'London Assurance Co. v. Bold, 6 =Pemberton v. Oakes, 4 RusseU, Adol. & Ell. (N. S.) 514, per Lord 154. Denman, C. J. e Simson v. Cooke, 8 Moore, 588. To '^ Cramer v. Higginson, 1 Mason, similar effect, see Hawkins i'. Ne-sr Or- 823. leans Print. & Pub. Co. 29 La. An. 134. _ , . 'New a 515; Dry v. Davy, 2 Perry & Dav. 249. 15 Ct. 206. 'Holland v. Teed, 7 Hare, 50. 134. *Spiers V. Houston , 4 Bligh (N. R.) i New Haven Co. Bank v. MitcheU, 3UEETY FOE ONE NOT LIABLE FOE SEVERAL. 139 A party agreed to guaranty the payment for such goods as should be sold to two partners. A bill of goods was so sold, and imme- diately afterwards the seller arranged with one of the partners that the other should go out of the firm, and took the note of the remaining partner alone for the goods, the note being payable to a third person. Held, these transactions discharged the guaran- tor, as the whole course of dealing was changed.' The guarantor for goods to be sold to a partnership, is not liable for goods sold to the partnership after a change in the members composing it." Sureties became bound for the performance of a particular act (the sale of property) by two persons, one of whom died, and the other sold the property and failed to account for it. Held, the sureties were not liable for such failure. They became sureties for both parties, and might not have been willing to become bound for the acts of one alone.^ A gave B a guaranty for goods to be purchased by C, to the extent of 200?., the guaranty not being a continuing one. C took in D as a partner, and B sold C and D goods on the credit of the guaranty to the extent of more than 200Z, and C and D failed. Afterwards, B sold C alone goods on the credit of the guaranty. Held, B could not recover on the guaranty for the goods sold C and D, because they were not with- in its terms. ISTor could he recover for the goods sold to alone, because then, by his own act, the circumstances of C were changed, and he was jointly with D saddled with a debt of more than 2001.^ A surety for gas, to be supplied to a person on certain premises, is not liable for gas supplied to another person on the same prem- ises, even if the person for whom he became responsible did not notify the gas company of the change in the proprietorship of the premises.' The defendant guarantied that certain parties would receive and pay a certain price for a steam engine and two boil- ers of a given capacity, particularly described. By agreement of the principals, without the consent of the defendant, an en- gine with three boilers, and of greater capacity and power, at an additional price, was substituted, and it was held that the defend- ant was not liable therefor. The court said that the defendants may be supposed to have known the circumstances of his princi- 'Bill V. Barker, 16 Gray, 62. ''Shaw «;. Vandusen, 5 Up. Can. Q. ^Backhouse ». HaU, 6 Best & Smith, B. R. 353. 507. « Manhattan Gas Light Co. «. Ely, ' State V. Boon, 44 Mo. 254. 39 Barb. (N.T.) 174. 140 LLABILITY OF SUEETY GENBEALLT. pals, their ability to pay, the power of an engine which could be profitably employed, and may have been willing to guaranty the contract first made, and totally unwilling to guaranty .the substi- tuted one.' All these cases are illustrations of the rule that the surety will only be bound to the extent, and in the manner, and under the circumstances that he consented to become liable. A party who guaranties a note signed by two, may, however, under certain circumstances, be liable for the' default of one. Thus, A and B signed a note, B signing upon the express condition that he should not be bound unless also signed the note as maker. 0, linowing these facts, did not sign the note as maker, but guar- antied its collection. B, by suit in chancery, had his name strick- en from the note, because the terms upon which he signed had not been complied with, and G claimed that he was thereby dis- charged from his guaranty. Held, that as knew B was not bound when he signed the guaranty, it was the same as if he had guarantied the note of A alone, and he was liable. "Where the surety knows that the undertaking of the principal is liable to be defeated, he must be considered as entering into his obligation with reference to such a contingency." " § 99. Surety to or for firm not liable if partners changed — Surety for performance of a'ward not liable if arbitrators changed. — A surety for the good behavior of the clerk of a sole trader is not liable for his acts or defaults after the sole trader takes in a partner.^ George Smith was doing business under the name of George Smith & Co., as banker, and employed Noble as teller in the bank, Noble giving bond with sureties for his conduct. Af- terwards Smith entered into a contract with Willard such as the court held constituted them partners. The firm name continued the same, and Noble continued teller the same, and after the arrangement with Willard, became a defaulter. Held, the sure- ties were not liable for such default. The court said: "The money then which Noble abstracted was not Smith's, but it be- longed to Smith and Willard. Smith alone is the obligor in the bond, and the sureties only imdertook for the principal that he should act with fidelity to Smith, when in his employ alone. They never undertook to answer for him when in the employ of .'Grant t). Smith, 46 New York, 93. s bright v. Enssell, 2 W. Blaok- 2 Sterns v. Marks, 35 Barb. (N. Y.) stone, 934. 565, per Morgan, J. ACTS PEBFOEMED BT PAETNEESHIP. 141 Smith and Willard, or of any other person than Smith." ' B, and J, who were partners, being appointed agents for the sale of certain books, gave bond with sureties, conditioned that they and the survivors, and survivors of them, and such other person and persons as should, or might at any time thereafter, in part- nership with them, or any, or either of them, act as agents for selling books, would duly account. J retired from the partner- ship, and it was held that the sureties were not liable for any subsequent acts of B and C." The condition o^ a bond recited that the obligor had " taken and employed * (A) as a servant, and in the nature of a clerk to him * (obligee), and likewise as his book keeper;" and provided that A should serve faithfully and account for all money, etc., to the obligee and his executors. Held, the surety in the bond was not liable for money received by A after the death of the obligee, although he was continued in the same employment by the obligee's executor. No service, except to the obligee was contemplated, although it might have become necessary to account to his executors.' Two parties agreed to leave a matter in dispute between them, to certain arbi- trators named, or a majority of them, and one of the parties gave bond with sureties that he w^ould perform the award. After- wards, without the knowledge of the sureties, two new arbitra- tors were substituted, and an award was rendered, a majority of the original arbitrators concurring therein. Held, the sureties were not liable for the award." § 100. When surety for the acts of one person liable if such acts performed by him and a partner. — Under certain circum- stances a surety for the acts of one person will be held liable for such acts, even though they are performed by such person as the partner of another. Thus, the defendant executed a bond of in- demnity, conditioned that one F, who had been appointed by the plaintiffs their general agents to sell sewing machines, should pay over the proceeds of the sales. F, after his appointment, took in a partner. The plaintiifs knew of this, and the machines were afterwards delivered at the firm's place of business, but they were all delivered on the order of F, and charged to his individual ac- count. In an action on the bond, it was held, that while the 'Bamett v. Smith, 17 111. 565, per 'Barkers. Parker, 1 Durn. & East, Caton, J. 287. 'University of Cambridge v. Bald- *Mackay v. Dodge, 5 Ala. 388. win, 5 Meea. & Wels. 580. 142 LIABILITY OF S0EETT GENERALLY. surety would not have been bound for the acts of any firm, as such, of which F might be a member, yet the agencies employed by F in disposing of the machines, did not change his relations with his principals so long as they confined their dealings to him, and the delivery of the goods at the place of business of the firm was not sufficient to establish that they changed, or intended to change such relations, as they could not have based a refusal to deliver upon the ground that F had taken a partner." A agreed with B, an attorney, to pay him for all such services as he had rendered, or should render 0. Afterwards B took in a partner, and rendered services for 0, in the pay for which his partner was entitled to share, but the services were rendered by B : Held, A was liable for the services. The fact that B's partner was entitled to receive part of the money for the latter services rendered by B, made no difference.^ By law, no one but persons licensed for that purpose had authority to sell goods at auction, and a licensed auctioneer had to give bonds. A, being a licensed auctioneer, gave bonds with surety, but was conducting the business in the name of A & B as partners, B not being licensed: Held, the sureties of A were liable for goods thus sold by him. As no one but a licensed auctioneer could legally sell goods at auction, if they were properly sold, it must be considered the act of A, " and the obligation which he and his sureties contracted in consequence of the privilege granted to him by the government, ought not to be Impaired by the circumstance of his having conducted the aflairs of his office with the aid of a partner in the profits, any more than they would be if he had acted by the assistance of a hired clerk. His situation in relation to his partner did not con- cern the public who applied to him as an auctioneer." ' These decisions do not controvert the rule that the surety for a single individual is not liable for a partnership of which such individ- ual is a member, but each case, from its peculiar circumstances, was held not to come within the rule. § 101. When obligation given by surety to firm, binds him after change in firm. — -An obligation given to a firm, securing it against loss from the acts or default of another, is sometimes held ' Palmer v. Bagg, 56 New York, » Roberts v. Griswold, 35 Vt. 496. 523. See, generally, as to liability of =Kuhn v. Abat, 14 Martin (La.) 2 guarantor of sewing machine con- N. S. 168, per Mathews, J. tract, Davis Sewing Machine Co. v. McGinnis, 45 Iowa, 538. OBLIGATION GIVEN BY SURETY TO PIEM. 143 to bind the obligor for matters occurring subsequent to a change in the members of the firm. Thus, a principal and three sureties signed a promissory note, payable on demand to a firm " or order," for 300?. The note was made for the purpose of enabling the principal to obtain credit with the firm. Held, that the note be- ing payable to the members of the firm, or order, and being evidently intended to be a continuing security, the makers were liable upon it, notwithstanding a change in the members of the firm.' A bond recited that the plaintiff " had agreed to take one Philip Jones into their service and employ, as a clerk in their shop and counting house," and was conditioned that he should account "for and pay the plaintiffs all sums of money," etc. Sub- Bsqaently, a new partner was taken into the firm of the plaintiffs, and Jones afterwards made default. Held, the sureties were lia- ble for such default. The court said the security was intended to be given to the house, as a house, and " the circumstance of tak- ing in a new partner, makes no difference, either as to the quantity of business or the extent of the engagement. He continues to carry on the business of the plaintiffs, and this contract is co- extensive with his continuance in the house. This is a security to the house of the plaintiffs, and no change of partners will dis- charge the obligor." " This decision can only be sustained upon the ground that it was the intention of the parties, and the effect of the obligation, to give the security to the house as a house, the same as if it had been a corporation, and regardless of who might compose it. A surety executed a bond conditioned for the faith- ful service of a clerk to a railway company. While the service continued, that company and another railway company were dissolved and united into one company, by a statute which pro- nded that all bonds, etc., made in favor of or by the dissolved companies, should inure to the benefit of and bind the new com- pany. Held, the surety was liable for a default of the clerk after the union of the two companies. The court placed its decision entirely on the words of the statute, and said it made the bond the same as if the name of the amalgamated companies had been mentioned therein.^ "Where a bond is directed by statute, to be 'Peaseji.Hirst, 10 Bai-n.& Cress. 122. 'Eastern Union Bailway Co. v ^PerMansfield,C. J., in Barclay !). Cochrane, 9 Wels, Hurl. & Gor. Lucas, 1 Bum. & East, 291, note; Id. 197. 3 Boufflas, 321. 144 LIABILITY OF StIEETT GENEEALLY. taken by a corporate body, but no form is prescribed, it is good, though taken in the names of the individual members thereof as obligees.' § 102. Surety not liable beyond scope of his obligation — • Instances. — A written guaranty of " the payments of all powder consigned " to a certain person tor sale, does not render the guarantor liable for a sale to the consignee, of the powder re- maining unsold upon closing the account between the consignor and the consignee." A guaranty of the payment of a certain sum of money in consideration of the building of a bridge by a county, at a place then fixed by a report of viewers, is not bind- ing, if the bridge is built at another place.' A guaranty that would consign the plaintiifs sugar to the value of $30,000, does not, in case of the failure of therein, bind the guarantors for more than the $30,000, as for commissions on the advances made to O on the faith of the guarantied consignment, and for exchange, etc. If O had consigned the sugar the guarantor would not have been liable at all, and his liability cannot exceed the stipulated value of the sugar." A party guarantied the pay- ment for gold with which the plaintiif should supply a goldsmith, for the purposes of his trade. The plaintiff discounted bills for the goldsmith, and gave him for them part gold and part money. The gold was applied to the goldsmith's trade, but he did not in- dorse the bills. Held, the guarantor was not liable for the gold so furnished. He meant only to pay for gold sold the goldsmith, and this was not sold but paid on the purchase of bills of ex- change.' A guarantor of payment of any loss which may arise, by reason of the sale of goods, which by stipulation between the principal parties are to be sold within ninety days, is not liable, if by agreement between such parties, the goods are not sold within that time, and the time for sale is extended to one hundred and eighty days." A guaranty provided that the guarantor would be answer- able to the plaintiffs fo the extent of 5000Z, for the use of 'the house of S. & Co. When the guaranty was given S. & Co. were indebted to the plaintiffs, for which the plaintiffs held their notes ■ Greenfield e. Yeates, 2 Rawle, (Pa.) * Mercer County v. Coovert, 6 Watts 158. & Serg. (Pa.) 70. " Carkin v. Savory, 14 Gray, 528; to * Dunlop v. Gordon, 10 La. An. 243. same eifect, see Wilson v. Edwards, ' Evans v. Whyle, 5 Bing. 485; Id. 6 Lansing (N. Y.) 134. 3 Moore & Payne, 130. » Fisher v. Gutter, 20 Mo. 206. NfOT LIABLE BEYOND SCOPE OF OBLIGATIOlSr. 145 and bills. Upon receiving tlie guaranty the plaintiffs canceled the notes, anci delivered up the bills to S. & Co., and S. & Co. there- upon delivered the bills and a new note back to the plaintiffs, but no money passed. Held, the guaranty only contemplated future loans to S. & Co., and the transaction did not amount to a loan which would charge the guarantor.' The defendant was surety by a bond to the plaintiff for the performance of a contract by S., according to an agreement which provided that S. was to be paid by instalments, and one-fourth retained till after the work was done. The plaintiffs made advances to S not called for by the contract, and in excess of the work done by him. 8 failed to complete the work, and the plaintiffs got others to complete it. The amount paid to S and the last contractor exceeded the contract price, but the value of the work done by S and the price paid the last contractor, did not together equal the contract price. Held, the plaintiff could recover nothing on the guaranty. The advances made by hira to S were made in his own wrong, and he must lose them.'' Sureties for the faithful perform- ance of his duties, by the freight agent of a railroad company, are not responsible for money received by another person appointed by the railroad company, and in its employ at the same station, but who is under the orders of such freight agent.' § 103. Liability of surety or guarantor — Special cases. — A guaranty was as follows: "I will be accountable to you for pay- ment within six months of the seed order forwarded by my son, E. A. H., and also. for payment within three months of 600 bar- rels of vetches, to be forwarded by the first steamer." The seeds were furnished and the vetches were not: Held, the seeds might be recovered for, as the contract was not entire. That portion concerning the vetches was distinct from the other, to be paid for in a different time, etc.* The condition of a bond executed by E to the F. & M. Bank, was that A shall and will from time to time ask for and receive from said bank, certain sums of money, at no time exceeding $5,000. N"ow if said A shall well and truly pay, or cause to be paid to said bank, all such sums as he may as aforesaid receive, then the obligation to be void, etc. : ' Glyn V. Hertel, 8 Taunton, 208. = C. & A. R. R. Co. v. Higgins, 58 «Warre v. Calvert, 2 Nev. & Per. 111. 128. 126; Id. 7 Adol. & EU. 143.' *Nasli v. Hartland, 2 Irish Law- Rep. 190. 10 146 LIABILITY OF SUEETT GENEKALLY. Held, taking the whole instrument together, it was the intention of E to restrict the whole amount of the indebtedaess of A to the bank, at any one time, to $5,000, and the bank having allowed him to become indebted in a larger amount, E was not liable at all. E may have thought that A could not successfully handle more than $5,000 ; and such may have been the fact. Having restricted his liability, he could only be held to his contract as he had made it.' In a case very similar to this, it was held that the surety was liable for the amount specified in the bond, notwithstand- ing a greater sum had been advanced. The court said if it was in- tended that a greater advance than the sum mentioned in the bond should avoid it, then the bond should have said so." These cases do not differ in principle. The court, in one case, held that the intention of the surety appeared, from the instrument, to be that he should not be bound at all if a greater sum than that stip- ulated was advanced. In the other case, the court held that no such intention appeared. A guarantor for the price of goods or- dered, but not yet sent, is not discharged, by the fact that the purchaser, upon receiving the goods, was dissatisfied with them, but finally agreed to keep them upon the seller deducting ten per ■cent, from the original price." A guaranty of the payment of dif- ferent kinds of goods, to be sold on a credit of six months, does not render the guarantor liable for anything, if one kind of the goods is sold on a credit of four, and another on a credit of six months. The guaranty offered was entire, and if not accepted as offered, it could not be accepted at all^ and there was no con- tract." Where the contract, the performance of which is guar- antied, provides for notes at four months to be renewed, if desired, for sixty day, at eight per cent, interest, the guar- antor is not holden for notes running six months, with interest for four months, at seven per cent., and thereafter at eight per cent. ; nor for six months' notes with interest, at eight per cent., commencing four months after date.' So, a guarantor for the price of goods to be sold on a credit of six months, is not liable, if the goods are so sold, but afterwards the term of credit is, by agreement between the purchaser and seller, lengthened as to a part and shortened as to another part." A surety who agrees ' Farmers apd Mechanics' Bank ». * Leeds v. Dunn, 10 New York, 469. Evans, 4 Barb. (N. Y.) 487. ' Locke v. McVean, 33 Mich. 473. 'Parkerw. Wise, 6Maule&Sel. 239. 'Henderson v. Marvin, 31 Barb. "Rice V. Filene, 6 Allen, 230. (N. Y.) 297. ILLEGAL ACTS OF CEEDITOE OE PEINCIPALS AS A DEFBHSE. 147 to indemnify A if he will give his drafts at three months to B, in order to enable B to raise money to pay C, is not liable, if A give B the money, instead of the drafts, to pay 0, and B with the money pays C The reason is, that B became immediately liable to A for the money so advanced, when, if the original agreement had been carried out, such liability would not have arisen for three months, and this time may have been of great value to B. It made no diflference that three months' time was actually given B, for there was no certainty that it would be given. A guaranty as follows : " I hereby guaranty the pay- ment of any purchases of bagging and rope which * may have occasion to make between this and the first of December next," extends the liability of the guarantor to purchases upon a reason- able credit made before the first of December, although the time of payment was not to arrive till after that day.'' "When a guar- antor agrees to be responsible for a bill of goods to be sold on three months' credit, he is liable, if the seller take the note of tlie purchaser,, at three months, for the goods. It was a credit of three months, as usually understood in the commercial world, and the fact that the note had three days of grace after the expira- tion of the three months, made no difference, as no business man would have thought of cutting off the days of grace.' A gave B the following guaranty: "I have given an order to pur- chase cotton, and * I have, in such case, to request that you will honor his drafts to the amount of those he may send to you for sale on my account, and I engage that his bills on me so transmitted shall be regularly accepted and paid." Held, the guarantor was liable for drafts drawn by C on A, and honored by B, on the representation of that they were for A's benefit, when they were not so in fact. The fair construction of the guaranty- was, that A would be liable for such bills as should represent lie had drawn on A's account.* § 104. When surety cannot set up illegal acts of creditor or principal as a defense. — A contract, providing for the return to the ovmer who had loaned them, of certain shares of railroad stock, and for the payment of interest for their use, was signed ' Bonser v. Cox, 6 Beavan, 110; see, ' Smith v. Dann, 6 ffiU (N. T.) also, 4 Beavan, 379. 543. ' Louisville Manuf. Co. v. Welch, 10 * Ogden v. Aspinall, 7 Dow. & Howard (U. S.) 461. Ryland, 637. 148 LIABILITY OF SUEETY GENEEALLY. in the name of the railroad company, which borrowed them by lis president, and guarantied by certain parties. Held, the guarantors were estopped to deny that the president of the com- pany had authority to sign the contract. By guarantying the contract, they had in substance asserted its validity, and to per- mit them to deny it would be to allow them to take advantage of their own wrong.' The teller of a bank had authority to issue due bills for the bank, for a special purpose, and issued such bills, not for such purpose, but to raise money for himself Held, that neither he nor his surety could set up a want of power in the bank to issue them. The teller and his sureties were " not as parties to the instrument entitled to contest them, although they were issued for the bank in the name of the teller. As well might the teller contend that as he committed a fraud, the bank was not bound by his act. This he could not be heard to do." " A partj;- was, by resolution of a city council, appointed the city's agent to negotiate certain bonds of the city on specified terms. The agent accepted the trust and gave bond with sureties for the faithful performance of his duties. He afterwards borrowed $5,000 for thirty days, for which he gave the city's note, and put up as collateral thereto, $21,000 of city bonds. This money he did not pay over. The city paid the note for $5,000, and took up the bonds, and sued the surety of the agent for the $5,000. Held, he was liable, and it made no difference, under the circum- stances, whether the bonds were legally or illegally issued by the city, nor whether or not it was bound by the note, signed by the agent. The city adopted the act of the agent, and paid the note to save its credit, and he and his sureties were liable for the money received by him.' But where the seller and purchaser of a national bank had both been guilty of acts in the purchase and sale which were prohibited by the banking act, and impaired the value of the bank, it was held that the surety of the pur- chaser was not liable, and this, although the purchaser did not seek to rescind the contract. Both the creditor and principal had been guilty of an act prohibited by law, which was injurious to the surety, and the equity of the surety to a discharge, did not depend upon the fact that the principal should desire to rescind the contract.'' ' Simons v. Steele, 86 NewHamp. 73. ' City of Indianapolis v. Skeen, 17 'Wayne v. Com. Natl. Bank, 52 Ind. 628. Pa. St. 343. per Thompson, J. *Demson v. Gibson, 24 Mich. 187. StfEETY NOT LIABLE FOE SPECIFIC PEEFOEMANCE. 149 § 105. 'When surety not liable for specific performance — Surety not charged to exonerate estate of principal — Other cases. — A Becond tenant in tail joined in a mortgage and bond with the first tenant in tail, who received the money lent thereon. The first tenant in tail died, and it was held that his creditors could not, by bill in equity, have the money secured by the mortgage made out of the mortgaged premises, so as to exonerate the personal estate of the first tenant in tail.' A held two mortgages on the same property, each of them to secure a separate note. He sold the second mortgage, and the note secured by it, to B, and guar- antied the payment of the note; and transferred the other note and mortgage to C, as collateral security. Held, the guaranty of the note which A sold to B, did not give such note, and the .mortgage securing it, a preference over the other. The only ef- fect of the guaranty was to render A personally liable.'' A owed B two notes, each for 1,000?, on one of which C was surety. A had a security up with B for both debts, and became bankrupt. B proved both claims against his estate, and received a dividend, and also received a certain sum from the security. Held, C was only liable for one-half the sum proved by B against A's estate, after deducting therefrom one-half of both sums received by B.^ A purchased land from C, and gave his note with B as surety for the purchase money, also retaining a lien on the land to secure the purchase money. A became insolvent, and the land was sold under execution, and purchased by D. Afterwards, C obtained judgment on the note, against A and B, and levied his execution on the land. Held, D could not compel to exhaust the property of B before selling the land. If B had paid the debt, he would immediately have been subrogated to C's lien, and D would have been in no better position.* A party gave bond with surety, to convey two hundred acres of land, situated within a certain district. Upon default of the principal, it was held that the surety coidd not be compelled to specifically perform the con- tract by conveying land of his own, although he owned more than the required amount and kind within the prescribed district. The surety covenanted that the principal, not himself, would convey. He could only be held liable in damages, and not for a specific 'Robinson v. Gee, 1 Vesey Sr. 251. ' Coates v. Coates, 33 Beavan, 249. * Gausen v. Tomlinson, 8 E. C. * Cole County v. Angney, 12 Mo. 132. Green, (N. J.) 405. 150 LIABILITY OF SUEETY GENEEALLY. performance.' Three parties purchased jointly, separate lots of ground, and each gave his notes for one-third of the amount. The act of sale declared that each had a one- third interest in the prop- erty, and provided " that to secure the payment of the aforesaid notes, the purchasers hereby mortgage the herein described prop- erty." Two of the purchasers paid their notes, and it was held that their land could not be sold to pay the note of the third. The court said it was the same as if each had given a separate mortgage on his portion of the land, and when any one paid, it operated the release of his land." But where two joint owners of a piece of land jointly mortgaged it to secure the several notes of each of them, it was held that the interest of both might be sold to pay the note of one.' § 106. What payment by person indemnified 'will charge surety — 'When surety liable for costs — Other cases. — When a party in- demnified by bond with surety, against the payment of money, is obliged to pay it, and does pay it by giving his negotiable note, which is accepted as payment, he may sue the surety, and recover the same as if he had paid in money.* The guarantor of a note is not liable for protest fees, because protest is not necessary in order to fix his liability.* Nor is the guarantor of a note, who is absolutely liable, without any suit against the maker, chargeable with the costs of such a suit." But where one partner by bond with surety, agreed to pay all the firm debts, and failed to do so, and the retiring partner was arrested in another state for one of the dfebts, and paid the debt and costs, it was held, that the surety was liable for such costs.' A guaranty was as follows: " Gentle- men, you will please to credit Mr. A to the extent of dOl, monthly, from time to time, and in default of his not paying, I will be accountable for the above amount." Held, the guaranty was not limited to 301 in all, but authorized an advance of 301 every month, even though the aggregate indebtedness might amount to much more than 30Z.' Where a lease provided for ' Johnson D. Hobson, 1 Littell (Ky.) 'WooUey «. VanVolkenburgh, 16 314. Kansas, 20. '' Erwin v. Greene, 5 Robinson (La.) « Woodstock Bank v. Downer, 27 Vt. 70. 539. ' Hunt V. McConnell, 1 T. B. Monroe ' Wright v. Sewall, 9 Robinson. (La.) (Ky.) 219. 128. *Lee V. Clark, 1 Hill (N. T.) 56; "Tennaut v. Orr, 15 Irish Com. Gage V. Lewis, 68 111. 604. Law R. 397. SaEKTT KOT LIABLE FOE MOEE THAJJ PEINCIPAL. 151 the payment of rent in monthly installments, and a party guar- antied the prompt performance of all the covenants thereof by the lessee, the guarantor is liable, and may be sued for the rent each month as it becomes due.' Where one who has contracted with A to indemnify and keep him harmless as to "liabilities" incurred by him as indorser for B, permits a judgment to be taken against A on such indorsement, it is not necessary that the judgment should have been collected to enable A to maintain an action for breach of the contract." A note was guarantied to be "good and collectible two years." Held, the guaranty covered the period of two years after the maturity of the note, as the note was not collectible till it was due.' Where a bond of $1,000 is required of an accused person, and he gives such a bond, in which each of the two sureties becomes bound for $500, the bond is valid.' § 107. Surety not liable for greater sum than principal — Other oases. — A surety who signs in the absence, and without the knowledge of the principal, is bound.' A guaranty may have a retrospective operation, where it appears from the instrument that such was the intention of the parties; and an instrument may be ante-datfed, so as to embrace a particular transaction ; and the date of the instrument is evidence of the time when the par- ties intended it to take effect." Suit was commenced against the principal and one surety, on a paymaster's official bond, and judg- ment for $10,000 recovered. Afterwards suit was brought against another surety on the bond, and a greater recovery than $10,000 claimed. Held, that as the liability of the principal was fixed at $10,000 by the first judgment, the surety in the last suit could not be held liable for more. Otherwise the surety would be held to a greater liability than the principal.' If the consider- ation upon which a surety signs fails, he is discharged, and may come into equity and have his obligation canceled.' A common money bond, payable on demand, given by a principal and surety, ' Binz V. Tyler, 79 111. 248. * Moore v. The State, 28 Ark. 480. * Smith V. Chicago & N. W. R. R. = Hughes v. Littlefleld, 18 Me. 400. Co., 18 Wis. 17. «Abrams v. Pomeroy, 13 111. 133. 'Marsh v. Day, 18 Pick. 321. As to ' United States v. AUsbury, 4 Wal- Kability of the surety on a bond "to lace, 186. be binding only one year from date, ' Cooper v. Joel, 1 De Gex, Fish. & see Davis v. Copeland, 67 New York, Jo. 240. 127. 152 LIABILITY OF SUEETY GENERALLY. to a person then the creditor of the principal, is presumed to be given for the existing debt, and not to cover future advances by the creditor to the principal.' When a surety, who had an oppor- tunity to read it, but did not, signed a bond for the payment of a debt, believing it, from the representations of the principal, to be a bond for the delivery of attached property, he is guilty of such gross negligence as will prevent him from having relief in equity against the bond.'' A guarantor that a party shall not be- come bankrupt, is not liable, unless a commission of bankruptcy is sued out against such party.' The same causes which will dis- charge a surety on a promissory note, will ordinarily discharge an indorser of the same." If a note is void for usury, a guaranty thereof, which has no other consideration than the note, is also void for the usury.^ § 108. Sureties on assignee's bond not liable to those who defeat the assignment — Principal cannot allege for error that surety is discharged — Other cases. — The sureties on the bond of an assignee, given pursuant to a statute with reference to volun- tary assignments for the benefit of creditors, are not liable for the failure of their principal to account for the assets in his hands, as required by a judgment in favor of creditors declaring the assign- ment void as to them, and directing the assignee to ]Day over the assets and avails thereof in his hands, to be applied in satisfaction of their claims. The bond was not intended for the benefit of persons who attacked and defeated the assignment, and thereby defeated the trust, but was for the good behavior of the assignee as trustee under the assignment.^ When the surety is discharged on the trial of a case against principal and surety, in the court below, the principal cannot allege for error in the court above such discharge of the surety. " The release of the surety, wheth- er erroneous or not, could in no wise prejudice the defendant, or affect his liability as principal, and he will not, therefore, be heard to complain of it." ' The surety on a note given for the price of a horse, and which is void because it is payable in confederate money, is not liable on the note, because it is void; nor is he lia- ble for the price of the horse, because his only liability existed by 'Walker v. Hardmsui, 4 Clark & ' Heidenheimer v. Mayer, 10 Jones Finnelly, 258. & Spen. {N. Y.) 506. ''Glenn v. Statler, 42 Iowa, 107. « People v. Chalmers, 60 New York, *Bulkeley v. Lord, 2 Starkie, 406. 154. * Smith V. Rice, 27 Mo. 505. ' Pewlass v. Abbott, 28 Mich . 270. b INTEEMAEEIAGB OF OEEDITOE AND PEINCIPAL. 153 virtue of the note.' A surety is bound to ascertain his principal, and where, by mistake, he signs a bond for the lessee of a tele- graph companyinstead of for the company, to release property from attachment, he will be bound.'' If it is agreed that a cer- tain party shall be surety on a bond to a sheriff, and a blank bond is taken to him and he signs it, and dies, and afterwards the bond is filled up according to the agreement, and delivered to the sher- iff, the estate of the surety is liable on the bond. As the surety had been previously agreed upon, the contract was complete as soon as the surety signed.^ The sureties on the bond of an as- signee for the benefit of creditors, which provides that the assignee shall " faithfully execute the trusts confided to him," are conclu- ded by the final decree of a court upon the account of the as- signee, by which he is directed to pay the claim of a specific cred- itor.'' It has been held that the fact that a voluntary bond is not stamped, is no defense to the sureties therein. They or their prin- cipal should have stamped it.° ^ § 109. When surety released if creditor and principal inter- niarry. — Surety not liable to party who pays debt at principal's request — Other cases. — A party who, at the request of the princi- pal alone, pays the debt for which a principal and surety are bound, cannot usually collect the amount so paid from the surety. Thus, where an executor, supposing the estate of his tes- tator to be solvent, paid in inll a debt due by the testator on which there was a surety, it was held that the executor could not, upon the estate proving insolvent, recover any portion of the sum so paid from the surety." A as principal, with others as his sureties, executed a note to B, a feme sole, and afterwards A and B intermarried; under the provisions of an ante-nuptial contract between them, the note did not pass to A upon the marriage, but remained the separate property of B. Held, that upon the mar- riage the wife lost her remedy by action against the husband, and the sureties were thereby discharged.' A creditor authorized his agent, B, to administer on the estates of any of his debtors ' Shepard v. Taylor, 35 Texas, 774. ' McGovern v. Hoesbaok, 53 Pa. St. 2 Doane v. Telegraph Co., 11 La. An. 176. 604. sPainecDrury, 19Pick.400. Hold- * Wells, r. Moore, 3 RobinsoD, (La.) ing the same principle -with reference 156. to the surety on a distiller's bond, see * Little V. The Commonwealth, 48 Elmendorph v. Tappen, 5 Johns, 176. Pa. St. 337. ' Govan v. Moore, 30 Ark. 687. 154 LIABILITY OF SUEETT GENEEALLY. who might die intestate. B administered on one of those estates' and gave bond with as surety for the faithful performance of his duty as administrator. B used the funds of the estate and became bankrupt. Held, was not liable to the creditor for B's default. B was the agent of the creditor, and represented him in that re- gard. wd,s therefore the surety of the creditor, and the creditor had no cause of action against his own surety.' § 110. When agreement to pay in good notes not guaranty that notes in which payment is made are good — Other cases. — Where, in an agreement for the sale of goods, it was stipulated that a part of the purchase money should be paid in " good obli- gations," • and certain notes were tendered to the seller, and re- ceived and receipted for by him " on payment of goods," there is no guaranty of the solvency of the makers of such notes. The insertion of the word "good " implied no guaranty, but gave the seller a right to refuse notes which did not answer that descrip- tion; and having received the notes as good, and receipted for them, he has not, in the absence of fraud, any claim upon the purchaser." " A guaranty was as follows : " This may certify that we, being acquainted with Frank Stevens, and reposing great con- fidence in his honesty, and the goods you may see fit to entrust him with, we will hold ourselves good for, provided he should sell them and abscond with the money, or squander them away; and this shall be your note against us:" Held, this was a mere guaranty of the honesty of Stevens. The guarantors were not liable, unless Stevens sold the goods and absconded, or squandered them; and a failure to pay for the goods was not evidence that they had been squandered.' A guaranty that the owner of stock ' Moodie v. Penman, 3 Dessaussure, not to be produced till the death of the Bq. ( So. Car. ) 482. As to when parties, is valid if produced before, guaranty covers past advances as well see, Washburn v. Van Norden, 28 La. as future ones, see Morrell u. Cowan, An. 768. Holding, that where a surety Law Rep. 6 Eq. Div. 166. Holding, is paid by the principal, the amount of that a surety for a suit to be com- adebt for which he is liable, and there- menced at the next term of court, is upon agrees to pay the creditor, he not liable for a suit commenced at the becomes the principal, and the princi- thii'd term, see Hibbs v. Eue, 4 Pa. pal becomes the surety, as between St. 348. To the effect that a surety them, see Coggeshall v. Buggies, 62 cannot prevent a judgment against the 111. 401. principal from being amended, see, ^ Corbet v. Evans, 25 Pa. St. 310. Pryor v. Leonard, 57 Ga. 186. As to 'McDougal v. Calef, 34 New Hamp. when a guaranty, which by its terms is 534. MISCELLANEOUS CASES. ' 155 in a corporation shall receive dividends thereon of a specified amount, for a certain number of years, by paying to the guaran- tor all he receives above that amount, is valid. It is not a wager, but " not only in words, but also in its plain design, a guaranty to the plaintiifs of a certain yearly profit on railroad stock owned by them." ' On a transfer of certain shares of railroad stock, the assignor guarantied " that said stock shall yield annually six per cent, dividends for the space of three years: " Held, this was a guaranty that the stock was equal in value to stock yielding annual dividends of six per cent., and not merely a guaranty that the assignee should receive six per cent, annually for three years on the par value of the stock. The measure of damages was the difierence between the actual value of the stock assigned, and stock which would have yielded dividends of six per cent, for the three years." A guaranty on a bond was as follows : " For value received, I guaranty the punctual payment of the intert^st on the within bond, and will pay the interest on demand in default of its payment by " * [the principal]. The bond was due in six and a half years, and the interest was payable semi-annually: Held, the guaranty only extended to the payment of interest fall- ing due before the time of payment of the principal sum. If it was otherwise, and the bond was never paid, the guaran tor would be liable for interest forever." If the principal borrow money to pay a note, the law will not imply an authority in him from those who signed the note as sureties only, to borrow the money on the joint credit of the principal and sureties, nor a promise from the sureties to the lender to repay the money so borrowed.* § 111. Surety for return of slave liable, if death of slave caused by principal — Other cases. — A surety, who executes a bond for the hire of a slave, which contains a covenant for the return of the slave at the end of a year, is not discharged from his obligation to return the slave, by the fact that before the end of the year such slave dies in consequence of the inhu- man treatment which he receives at the hands of the principal. The death of the slave was not the act of God or the owner. The principal and surety " are join,t covenantors, equally bound ■Elliot V. Hayes, 8. Gray, 164, per ^Hamilton v. Van Rensselaer, 43 Metcalf, J. New York, 244; Melick v. Knox, 44 ^Struthers v. Clark, 30 Pa. St. New York, 676. 210. ■* Eolfe V. Lamb, 16 Vt. 514. 156 LIABILITY OF SUEETY GBNEEAILY. for the performance of tlie covenant, and neither can exonerate himself from liability, on the ground that the wrongful act of the other has rendered a performance by him impossible." ' A party wrote a letter introducing another, stating that he wanted to purchase a certain amount of goods, and concluding " I con- sider him perfectly good, and if required, will indorse for him to that amount." Held, he was not liable for goods sold on the strength of this letter, unless he had been requested to indorse, and had refused. The guaranty was conditional, to be created by indorsement, if required, and the protection of the party writing the letter may have depended upon the form of the se- curity." A bond provided that a secretary of state should return certain fees, if it should be decided by the legislature or supreme court, that they were not chargeable to a fund commissioner. Held, the sureties were not liable, unless the legislature or supreme court decided as provided in the bond. A decision by one house of the legislature was not sufficient, and neither the sureties nor their principal were bound to procure the decision." A covenant to indemnify A against all damages and costs which he may incur in consequence of indorsing any notes of B, past or prospective, relates only to indorsements made by A, for the accommodation and at the request of B, and does not extend to indorsements by A of notes given him by B, for debts of B, due to A.* A statute concerning paupers, provided that a settle- ment might be gained "by any person, who shall ionafide take a lease of any real estate, of the yearly value of ten dollars, and shall dwell upon the same one whole year, and pay the said rent." A took a lease of ground for a year at a rent of $1 a month, and paid $1.50 rent himself, and his surety B paid the balance. Held, this was suflBcient to entitle A to a settlement. It was the same as if A had borrowed the money from B, and paid the rent.' Upon a bond conditioned that one J should pay to plaintiffs monthly, " and every month during the time for which he should act as their agent, all moneys which he then had received or which he should receive' for premiums, etc., and should repay to the applicants all moneys which he had then re- 1 Carney v. Walden, 16 B. Mon. « Field v. Rawlings, 1 Gi'.m. (m.) (Ky.)388, per Simpson, J. 581. ^ Stockbridge v. Soiioonmaker, 45 *Trask v. Mills, 7 Gush. 552. Barb. (N. Y.) 100. "Butler v. Sugarloaf, 6 Pa. St. 262. MISCELLANEOUS CASES. 157 ceived or should receive for insurances not accepted by the plain- tiffs, and should in all things well and faithfully conduct himself as their agent," it was held the sureties were only liable for moneys received after the bond was executed.' § 112. Surety for balance which may remain due after sale of property not liable till completed sale made — Other cases. — An executor's bond, describing the testator as James L. Findley, can- not by parol evidence be raade applicable to the estate of Joseph L. Findley, although it was the intention to give the bond in the estate of the latter, and the mistake was a clerical error.^ In consideration that the plaintiff would advance 1,200^ to a third person, upon mortgage of certain leasehold premises, the de- fendant promised that if, after any " sale" of said premises, duly made, the premises did not pay the debt, the defendant would immediately make good the difference. The premises were put up for sale, and knocked down to "W for 650?, who paid a de- posit of 100?, and signed the usual contract, but afterwards re- fused to complete the purchase, and the plaintiff sued him on the contract, which suit was pending. The plaintiff then sued the defendant on the guaranty. Held, the suit was premature, and could not be sustained. The word " sale" meant a completed sale. Otherwise there was no means of ascertaining the damage.' A guaranty on the back of a bond was as follows : " I * do hereby guaranty and bind myself and heirs to * for the pay- ment of the amount of the within bond." The condition of the bond was that the obligors should at a certain time pay a sum of money, " on receiving from the obligee a title" to certain land. Held, the covenants were mutual, and dependent, and the plaintiff could not recover without showing a tender of a deed for the land to the obligor.* A covenanted with B that should sell and ac- count for all merchandise which B might put into his hands. B ' Canada West, etc. Ins. Co. v. Mar- lectible, see Sylvester v. Downer, 18 ritt, 20 Up. Can. Q. B, E. 444. As to Vt. 32. what is gruaranty and not an original ' McGoyney v. The State, 20 Ohio, undertaking, see Kellogg v. Stockton, 93. The guai-anty must \>e strictly 29 Pa. St. 460. As to when sureties of complied with, or the guarantor is not life insurance agent are not liable for liable, Bigelow v. Benton, 14 Barb. renewal premiums received by him, (N. Y.) 123. see Crapo v. Brown, 40 Iowa 487. As *Moor v. Roberta, 8 J. Scott (N. S.) to what must be stated in declaration 880. against guarantor that a note is col- 'Gardners. King, 2 Ired. Law (Nor. Car.) 297. 158 LIABILITY OF SUEETT GENEEALLT. settled with C, and a balance was found due from 0, for which B took his note, due one day after date. Held, if the note was not paid, A was liable on his covenants for taking the note was nothing more than was reasonably within the contemplation of the parties.' If the payee of a note guaranties its collection, "and transfers it, and afterwards takes it up, and then transfers it to another person, who agrees to take it at his own risk, but the guaranty is not erased, the payee is not liable to the holder on the guaranty. When the payee took up the note the guaranty became y^jic^ws officio, and there was no contract of guaranty be- tween the payee and the holder." § 113. When guaranty not revoked by death of guarantor — VThen surety cannot relieve himself from future liability by no- tice. — When the engagement of a surety is a contract, and not a bare authority, it is not usually revoked by his death, and his estate remains liable, the same as he would have been if he had lived.' Thus, where a party became surety for a deputy sheriff, his estate was held liable for a breach committed three years after his death. The court said: "The efficacy of contracts does not cease upon the death of one of the contracting parties. * Whether a man undertakes for himself or others, in regard to future trans- actions, the contingency that death may remove him before the obligation can be fulfilled, must be in the contemplation of all parties, but it remains unaffected by that event." * A written continuing guaranty was given by A and B, which, by its terms, was to continue in force till revoked by written notice. A died; leaving a solvent estate, and four years after his death, no notice having been given, a liability was created, covered by the guar- anty, which B had to pay, and he sued the estate of A for contri- bution. Held, he was entitled to recover. The court said: " What obstructs one from indemnifying against the conse- quences of an event which may not happen for more than four years after his death, more than giving his promissory note, which may not reach maturity for more than four years from his death? It is asked how long such a guaranty shall continue in 'Bush V. Critchfield, 5 Ohio, 109. 39 Pa. St.; Royal Ins. Co. v. Davies, » Gallagher v. White, 31 Barb. (N. 40 Iowa, 469. Y-) 92. 'Green v. Young, 8 Greenl. (Me.) 'Hightower v. Moore, 46 Ala. 387; 14, per Weston, J. White's Exrs. ». The Commonwealth, EEVOCATION OF GtlAEANTY BY DEATH OF GUAEANTOE. 159 force, and the answer is, until it be ended according to its terms.'" When a guaranty was as follows: " I request you will give credit in tlie usual way of your business, to L, and in consideration of your doing so, I hereby engage to guaranty the regular pay- ment of the running balance of his account with you till I give you notice to the contrary, to the extent of lOOl sterling," it was held that the estate of the guarantor was liable for goods supplied after his death." A party who has entered into a contract as surety, cannot ordinarily, by notice, relieve himself from future liability for his principal, in the absence of a stipulation to that effect; thus, a party on taking in a clerk, took from him a bond with surety, for his good behavior. The time of service was not fixed, but it was to be determinable at the option of either the clerk or the employer. The surety died, and his executrix gave notice to the employer that she should no longer consider herself liable on the bond. The employer read the notice to the clerk, and required him to execute a new bond with another surety, which was done. Held,the estate of the first surety was liable for defaults of the clerk occurring after the notice was given. The employer did not agree to release the estate, and his acts upon receiving the notice, did not operate as such a relfease.' Upon a bond by a surety, conditioned for a collecting clerk's paying over money received by him from time to time, and at all times during his continuance in the service, it has been held that the surety can- not discharge himself from further liability, by giving notice on a particular day, that from thenceforward he will not remain surety. The court said if he desired to have the right to terminate his sure- tyship by notice, he should have so specified in his contract.* Where a guaranty was revocable, it was held it could not be re- voked so as to prejudice the party who had already acted upon it, nor prevent him from renewing obligations which he had. taken on the faith of it.° It has been held that a general guaranty continues in force till it is shown by the guarantor to have been rescinded." 'Knotts V. Butler, 10 Richardson 'Gordons. Calvert, 2 Simons, 253; Eq. (So. Car.) 143, per Wardla-w, affirmed, 4 Russell, 581. 0. J.; to same effect, see Fennell * Calvert v. Gordon, 3 Man. & Ryl. V. McGuire, 21 Up. Can. C. P. R. 124. 134. 'Williams v. Reynolds, 11 La. (6 * Bradbury v. Morgan, 1 Hurl. & Curry) 230. Colt. 249; to similar effect, see Menard 'Knight v. Tox, Morris (Iowa) *. Soudder, 7 La. An. 385. 305. 160 LIABILITY OF SDEETY GENEKALLT. If a wife mortgages her real estate for the debt of her husband, the land remains liable after her death.' § 114. When death of guarantor revokes guaranty — When surety may terminate his liability by notice. — One who guaran- ties the performance of a contract by another, has the right after the default of his principal, which would justify its termination, ■ to require that the contract be terminated and the claim against himself as surety be confined to the damages then recoverable.'' A surety upon an ordinary lease for one year (with provision that if there was a holding over, it should run for another year, unless the landlord sooner determined it, and upon which there bad been such a holding, that the tenancy was one from year to year), gave three months notice in writing to the landlord, that at the expir- ation of the then current year, he would no longer be responsible for rent, and it was held that at the expiration of that year he was released from further liability.' It has been held, that the death of a person who has given a letter of credit, authorizing another to draw on liim to a certain amount for a limited period, and agreeing to accept the drafts drawn, and pay tliem if not paid by the drawer at maturity, will' operate as a revocation of all au- thority to thereafter draw on his credit so as to bind his estate, though the person to whom and for whose security the letter was given has no notice of his death, and the period for which the authority was given has not expired.* The court treated it as a question of agency, and said that the death of the principal re- voked the authority of the agent; while admitting, that if there had been a contract, the death of the guarantor would not have afi'ected it. It has also been held, that a guaranty to secure money to be advanced to a third party on discount to a certain extent for the space of twelve months, may be revoked within that time.' The court said the promise by itself created no obh- gation unless advances were made, and the fact that twelve months was mentioned in the guaranty, limited the time beyond which it should not extend, instead of making a binding contract for that time. Both these cases may well be sustained, by the fact that the writings in each were simply offers to guaranty, which 'Miner v. Graham, 24 Pa. St. 491. * Michigan State Bank v. Estate of " Hunt V. Roberts, 45 New York, 691. Leavenworth, 28 Vt. 209. 'Estate of DesUver, 9 Phila. (Pa.) «Offord». Davies, 12 J. Scott (N. S.) 302 ; to similar effect, see, Pleasanton'a 748. appeal, 75 Pa. St. 344. JOINT SUIT AGAINST S0EETT AND PEINCIPAl. 161 were only binding so far as they were acted on, and might at any time be revoked, tliesame as any other offer before it is accepted.' A guaranty was determinable by six months' notice, and the guar- antor died, leaving as his executor the debtor, on whose behalf the guaranty was given. The creditors, knowing these facts, and also that there was no personal estate to answer the guaranty, contin- ued to make advances to the debtor for two or three years. Held, the creditors could not recover against the guarantor's estate for any advances made after his death. This was not put upon the ground that the guarantor's death terminated the guaranty, for the court said it did not think that alone would terminate it, but upon the ground that when the creditor knew there was no per- sonal estate, it would be presumed that the advances were not made on the guaranty, and that it would be grossly inequitable to allow the creditor to charge the real estate under the circum- stances.'' It has been held, that doubtful expressions in a subse- quent correspondence should not be construed as revoking an ex- phcit guaranty.' § 115. When surety may be sued jointly w^ith principal. — When principal and surety are jointly liable on the same con- tract, they may be sued jointly for its enforcement, and this whether or not the fact of suretyship appears from the instru- ment." A surety who signs a note made out in the singular num- ber, " I promise," and adds to his name the word " surety," is lia- ble in a joint suit with the maker, who has also signed the note.° But where sureties on a joint and several note had been released fro tanto by the creditor surrendering a security for the debt of less value than the debt, it was held that the principal and sure- ties could not be sued at law together, because, as the principal was liable for the full amount, and the sureties for only a portion, no judgment could be entered according to the liability of the parties." A principal bound himself by bond for the payment of a certain sum of money. Immediately under the signature of the principal, on the same paper, certain sureties wrote: "We ' To Ihis effect, see, also, Jordan v. 'Lanusse v. Barker, 3 Wheaton, 101. Dobbins, 122 Mass. 168. * Kleckner v. Klapp, 2 Watts & Serg. 'Harriss v. Fawcett, Law Rep. 8, (Pa.) 44; Craddock ». Armor, 10 Chan. Appl. Cas. 866; see, also, same Watts (Pa.) 258. case in court below, Law Eep. 15, ' Dart v. Sherwood, 7 Wis. 523. Eq. Cas. 811. • Cummings v. Little, 45 Me. 188. 11 162 LIABILITY OF SUEETY GENERALLY. hereby bind ourselves as security for said Olds (principal) for the full and faithful performance of the above agreement," and signed and sealed under these words. The bond was executed and de- livered by principal and sureties at the same time and on the same consideration. Held, they were all liable together in one suit. The court said: ""Where several persons execute an instrument in parol, or under seal, upon the same consideration, at the same time and for the same purpose, and taking effect from a single delivery, they are in legal effect joint contractors or obligors. * Tlie particular form or manner in which the parties have affixed their signatures to a contract or bond, is immaterial. It matters not whether those who execute as sureties sign their names di rectly under that of the principal, and then append to each name the fact of signing merely as surety, or whether, as in tliis in- stance, the sureties write between their names and that of the principal that they sign as securities, and then affix their signa- tures." ' The same thing was held, when at the foot of a money bond a surety had written: "I * join in the above obligation with * (principal) and am his security for the above sum of * ;" " and where, under a contract for the payment of wages, a surety wrote: "I * agree to stand as surety for * (princi- pal) in the above agreement." ° A and B, being partners, dis- solved their partnership, and B executed an agreement to A that he would pay the firm debts. C signed this agreement with B, writing before his name the word " security." The firm was at the date of the agreement indebted to D, who sued A, B and C, in a joint action for his debt, and it was held they were liable, on the ground that C was a surety, and primarily liable, and the -contract having been made for the benefit of the creditors of the firm, any of the creditors might sue on it." Where a third party guarantied a lease, as follows : " For value re- ■ceived, 1 guaranty the payment of the rent, as stipulated by said * (principal), in case of non-payment by him;" it was held that the guarantor and lessee could not be sued jointly for Tent. The court said: "The undertaking or contract of the guarantor was distinct from that of the principal and collateral 'Stage V. Olds, 12 Ohio, 158, per " Atwell's Admr. p. Towles, 1 Munf. Read, J.; to same eiFect, see Leonard (Va.) 175. ». Sweetzer, 16 Ohio, 1. a Watson v. Beabout, 18 Ind. 281. * Dunlap V. McNeil, 35 Ind. 316. EECOVBKT ON MONEY COUNTS AGAINST StTKETT. 163 thereto, and his liability dependent upon a contingency, namely: the non-payment of rent by the lessee." ' The same thing was held where, under a lease, sureties wrote: "For the payment of said contract being fulfilled on the part of said * (principal), we, the ixndersigned, will become responsible;"" and where, on a lease under seal, a guaranty not under seal, was as follows: "I hereby become security for * (principal) for the rent specified in the within lease." ' But where a party, not the lessee, joined in the execution of a lease, and guarantied on his part that the payments of rent should be made as they came due, it was held that he might be jointly sued with the lessee." Where a stranger to a note payable in clocks, at the time of its execution, wrote on its back: "I guaranty the fulfillment of the within contract;"" and where, under similar circumstances, a stranger to a note pay- able to bearer, indorsed it: " For value received, I guaranty the payment of the within note, and waive notice of non-payment," ° it was held, that the maker and indorser might be sued jointly. But where a third party wrote on the back of a bond: " I do join with * (principal) as his security for the performance of the agreement mentioned in the present note," it was held, that he could not be sued jointly with the maker, on the ground that their undertakings were distinct and different.' § 116. When recovery on common money counts cannot be had against surety — Surety for alimony cannot be compelled by motion to pay it — Other cases. — A joint and several promissory note was signed by two, one adding to his name the word " surety." They were sued on the common money counts. Held, no recovery could be had on those counts against the surety. The court said: "The rule is nearly or quite universal that there can he no recovery against a suretj"- where his character appears on the face of the instrument, without declaring specially on the contract. * In the common case of a suit against the makers of a promissory note, the instrument may be given in evidence under the money counts, for the reason that the note is evidence of money lent to or had and received by the makers to the plain- 'Virden v. Ellsworth, 15 Ind. 144, ^Goles' Admx. v. Van Arman, 18 per Hanna, J. Ohio, 336. 'Cross V. Ballard, 46 Vt. 415. « Prosser v. Laqueer, 4 Hill (N. Y.) ' Turney v. Penn, 16 111. 485. 420. ^McLott V. Savery, 11 Iowa, 823. 'Preston ». Davis,8 Ark.(3Eng.)167. 164 LIABILITY OF SUBETY GENERALLY. tiff's use. But when one of them signs as a surety for the other, and that fact appears on the face of the instrument, the note fur- nishes no evidence that he received the whole or any part of the consideration. Indeed, it proves the contrary." ' Where a stat- ute provided that the maker, drawer, indorser or acceptor of a bill of exchange or promissory note might be joined in one suit, it was held that this did not authorize a joint suit against the maker and guarantor of a promissory note," it having been pre- viously decided by the same court, that in the absence of a statute the maker and guarantor of a note could not be sued' together.' A statute provided that in case of a foreclosure of a .mortgage, a decree for any balance due after sale of the mortgaged premises, might be made against any of the parties to the suit who were liable. Held, that a mortgagee who assigned the mortgage and guarantied the debt, was a proper but not a necessary party to a suit to foreclose the mortgage, and a personal decree might be rendered against him for any deficiency.* Under nearly the same circumstances, it has been held that the guarantor was not a proper party to the foreclosure suit, and that no personal decree could be rendered against him.° The surety for alimony in a di- vorce suit cannot be compelled to pay th^ alimony by motion, but must be sued on his bond.° § 117. When surety who is not liable at law will not be charged in equity. — When the Surety in a joint obligation dies, there is no remedy at law on the obligation against his estate, and in the absence of fraud or mistake, equity will not charge his estate with the payment of such obligation. Where an obliga- tion is joint, and all the obligors participated in the consideration, or there is any previous equity which imposes a moral obligation to pay on all the obligors, there a court of equity will enforce the obligation against the estate of the deceased obligor, because the reasonable presumption is that the parties intended the obliga- tion to be joint and several, but through fraud or mistake it was ' Butler V. Rawson, 1 Denio, 105, per lateral and not original, see Smith v. ■ Bronson, C. J.; to same effect, see Hyde, 19 Vt. 54. Wells «. Girling, 8 Taunt. 737. ^ Jarman v. Wiswall, 9 E. C. Green « Stewart v. Glenn, 5 "Wis. 14. (N. J.) 267. ^Ten Eyok v. Brown, 3 Pinney, "^ Borden ». Gilbert, 13 Wis. 670. (Wis.) 452; as to who may sue on a « Appeal of Ernestine Guenther, 40 guaranty, see Jenness v. True, 80 Me. Wis. 115. 438; as to when an agreement is col- SURETY NOT LIABLE AT LAW, NOT CHAEGED IN EQUITY. 165 made joint only. But "this presumption is never indulged in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral'obligation whatever to pay the obligee, independent of his covenant, and consequently there is nothing on which to found an equity for the interposition of a court of chancery." The surety may have had the obliga- tion made joint, with express reference to the>contingency of his death.' "Where a joint appeal bond is signed by two sureties, and one of them dies, his estate is discharged from liability, both at law and in equity, and the fact that the bond was given in pur- suance of a statute, does not affect the liability thereunder. In cases of suretyship, the contract'is the measure of liability, and a statute under which it is made will not be so construed as to enlarge the obligation of the surety beyond the terms of his con- tract." Principal and surety signed a joint and several bond, by which they bound themselves as " principals" for the conduct of the principal. Suit was brought on the bond jointly against the principal and surety, and a joint judgment was recovered against them. Afterwards the principal became insolvent, and the sure- ty died. Held, that the remedy at law being gone against the estate of the surety, equity would not charge it. The bond was merged in the judgment, and after judgment the obligee could not have sued the principal and surety separately.' A mortgage to secure the debt of F. & Bro. to the complainant, was executed by F. and his wife on premises which were the sep- arate property of the wife ; afterwards the complainaift executed a satisfaction of the mortgage, upon F.'s promise to give a new mortgage and obtain the wife's signature thereto, which signa- ture, however, the wife refused to give. Held, the satisfaction would not be annulled, and the mortgage enforced against Mrs. F., she being only liable as surety, and there being no accident or mistake in the execution of- the satisfaction, and no fraud on her part. The Court said: "The obligation of the surety is 'Pickersgill ®. Lahens, 15 Wallace, v. Iveson, 3 Drewry, 177; Towne v. 140, per Davis, J.; Harrison t). Field, 2 Ammidown, 20 Pick. 535; Contra, Wash. (Va.) 136; Eisley v. Brown, 67 Smith v. Martin, 4 Dea. Eq. (So. Car.) New York, 160; Pecker v. Julius, 2 148. Browne (Pa.) 31; Weavers. Shryock, 6 « Wood v. Fisk, 63 New York, 245. Serg. andRawle (Pa.) 262; Rawstone 'United States v. Archer's Exr. 1 t'. Parr, 3 Russell, 539; Kennedy t). Car- Wallace, Jr. 173; 'disapproving, United penter, 2 Wharton (Pa.) 344; Other States v. Cushman, 2 Sumner, 426. 166 LIABILITY OF SUEETY GENEEALLY, stricti juris, and if his contract is not binding at law, there is no liability in equity founded on the consideration between tlie prin- cipal parties. A court of equity will not enforce a liability upon a surety where he is not held at law." ' § 118. When equity will charge surety who is not liable at law. — Equity will, however, in many instances, afford relief against a surety where there is no remedy at law. Thus, equity will set up a lost bond against a surety. " The reason is, that the surety is not discharged by the loss of the bond, and the court only relieves against the accident by setting up the evidence of the debt." " Equity will reform a joint guardian's bond so as to hold it joint and several, where it appears clearly to have been the intention of the parties to give a joint and several bond, and relief will, in such case, be granted against the estate of a de- ceased surety. The court said : " When the contract does not ex- press the agreement or intention of the parties to the injury of the obligee, and this is clearly made to appear, equity will reform the instrument, as well against sureties as principals." ' Where, by mistake, property mortgaged by a surety is misdescribed, equity will reform the mortgage. In this case, the court said: " Where the surety is aware of, and consents to the purpose to which his obligation is to be applied, and it is so used, though without con- sideration, except that advanced to the principal, equity will reform any mistake of fact, so that the obligation shall fulfill its purpose." *, Where principal and sureties signed a prison-bounds bond, and which, by mistake, misrecited the j udgment on which the principal was imprisoned, it was held that equity would reform the bond." Where principal and surety signed a joint bond by mistake, the intention being to sign a joint and several bond, and the principal died, it was held the surety could, by bill in equity, compel the payment of the bond by the estate of the principal as a specialty debt.^ A agrees to be bound in a bond as surety to ' Leffingwell v. Freyer, 21 Wis. 398, bond joint and several, and estate of per Dixon, C. J.; to similar effect, see surety chargeable, seeBesore v. Potter, Ratcliffe v. Graves, 1 Vernon, 196. 12 Serg. and Rawle. (Pa.) 154. ^ Kerney's Adnir. v. Kerney's Heirs, * Prior v. WHlaims, 3 Abb. Rep. 6 Leigh. (Va.) 478, per Carr, J. ; to Om. Cas. 624, per Peckham, J. same effect, see East India Company ' Smith v. AUen, Saxton (N. J.) 48. V. Boddam, 9 Vesey, 464. « Pride v. Boyce, Rice Eq. (So. Car.) » Olmsted v. Olmsted, 38 Ct. 309, 275. per Butler, 0. J. For case holding WHEN EQUITY WILL CHARGE SUEETY NOT LIABLE AT LAW. 167 B, and signs and seals it accordingly, but by tlie neglect of the clerk A's name is not inserted. The obligee shows A the condi- tion, and his name and seal, and demands payment, and threatens to sue him unless he gives fresh security, which A agrees to do, but, after finding the mistake, refused, not being bound at law, yet equity will compel him.' In cases such as the preceding, equity affords relief on the ground of accident or mistake; but ^here it is sought to reform an instrument against a surety on the ground of mistake, evidence of the necessary facts must be so clear as to leave no doubt. It has been said that " although an instrument may undoubtedly be reformed on parol proof, yet where, as here, the relief sought is adverse to the pre-exi stent equity of a surety, the evidence should be so clear as to leave the fact without a shadow of a doubt.'" A devise to executors with authority to sell the real estate of the testator for the payment of his debts, applies as well to a joint and several bond, executed by hini as surety for his co-obligor, as to any other debts, and a court of chancery will compel a sale of the real estate, so as to pay such bond.^ A law concerning the sale of school lands, prescribed the form of the notes to be given for the purchase of such lands, made them joint and several obligations, and specially declared that the surety should, in all respects, be liable as principal. A principal and surety signed a joint note for the purchase of such lands, and the surety died. Held, the estate of the surety was charge- able in equity for the amount oi the note; the decision being placed on the ground alone that the statute made the surety liable as principal, and, being a public law, must be presumed to have been known to all the parties.* A trustee having in his hands funds arising out of property sold under a decree of court, became delinquent, and having wasted the fund, died intestate, having before committed breaches of his bond, for which both he and his sureties would have been liable at law if he had lived. A claimant of the fund in the hands of the trustee could not place himself in a position to proceed at law on the bond, be- cause of the death of the trustee. Held, equity would afford him relief on the bond against the sureties. There was a clear ' Crosby v. Middleton, Fincli's Pre- 428, per Gibson, C. J.; Smith v. Allen, cedents, 309. Saxton (N. J.) 43. » Moser v. Libenguth, 2 Rawle. (Pa.) ' Berg v. Radcliff, 6 Johns. Ch. 302. * Powell V. Kettle, 1 Gillman (111.) 491. 168 LIABILITY OF SUEETT GENEEALLY. right against the sureties, which could not be enforced at law because of the accident of the death of the principal, and the fact that there was a right, and no remedy at law, was sufficient alone to give equity jurisdiction. The law on this subject was well and concisely stated by the court, as follows : " A court of equity will do nothing to extend the liability of securities be- yond the clear intent and import of their contract. But if to such an extent they cannot at law be held liable by reason of fraud, accident or mistake, a court of equity, to prevent a failure of justice, will interfere and enforce the execution of their con- tract, according to its obvious meaning and design." " §,119. 'When new promise revives liability of surety or guar- antor. — If facts exist which are sufficient to discharge a surety or guarantor, and he, with full knowledge of the existence and effect of such facts, promises to pay the debt, the weight of authority is that he will be bound.^ Where time had been given which would have discharged the surety on a note, and he, knowing this, paid part of the note, and promised to pay the balance, it. was held, he had waived any defense he might have had by reason of such giv- ing of time." Where the holder of a note had been guilty of such laches as would have discharged the guarantor, but the guarantor, on demand of the holder, paid him the interest due on the note, knowing and protesting he was not liable on his guar- anty, it was held he had waived the laches, and continued liable on the guaranty ; and this, notwithstanding the fact that he paid the interest, because of the threat of the holder, that, unless he pa!d the interest he would sue him for other large debts which he owed the holder.^ But the surety or guarantor will not be bound by such new promise, unless he made the same with a full knowledge of the facts, which would entitle him to a discharge,' and of their legal effect." After time has been given by the cred- itor, which would discharge the surety on a note, his liability is not revived by a payment made on the note by him with money of principal, although, at the time of such payment, he gave no intimation that the money was not his own.' It has been held ' Brooks t). Brooke, 12 Gill & Jolins. *Gamage v. Hutchins, 23 Me. (Md.) 306, per Dorsey, J. 565. ^ Ashford v. Robinson, 8 Ired. Law ^ Robinson v. Offutt, 7 T. B. Monroe {Nor. Car.) 114. (Ky.) 540; cojiira Rindskopf». Uoman, 2 Hinds V. Ingbam, 31 111. 400. 28 Ohio St. 516. •Sigourney r. Wetberell, 6 Met. ' Lime Rook Bank ». Mallett, 42 Me. (Mass.) 553. 349. STATUTE OF LIMITATIONS. 169 that after the guarantor of a note is discharged by the laches of the holder, a new promise on his part will not bind him, unless there is also a new consideration.^ Where the sureties on an official bond were, in fact, not liable tor the default of their prin- cipal, and without seeing the bond acknowledged they were liable and promised to pay the defalcation, but afterwards, upon inspec- tion of the bond, were advised they were not liable, and then refused to pay, it was held that as they promised under a mis- take of law, they were not liable." § 120. Statute of limitations — When new promise or partial payment by principal takes case out of statute as to surety. — If a principal and surety execute a joint, or joint and several note, bond, or other obligation, a new promise, or a partial payment by the principal, will avoid the bar of the statute of limitations as to the surety as well as to the principal." This is placed upon the ground that as they are jointly liable, the admission or act of one is the admission or act of both. A written acknowledgment of the debt by the principal within the period prescribed by the statute of limitations, will not take the case out of the statute against a guarantor for the price of goods sold the principal, because in such case the principal and guarantor are not joint debtors.* If a claim against a deceased surety, as surety, is not presented till his estate is settled, it is barred the same as any other claim, and it makes no diiference that the claim had been proved against the estate of the principal, and it could not be known till that estate was settled, how much of the claim it would pay.^ Where a surety is about to be sued, and before the statute of limitations has barred the debt, he hands to the cred- itor for suit, a note whicli had been executed to him by the prin- cipal as an indemnity, it is such an admission of indebtedness on his part as will start the statute to running from that time, as to him.* It has been held that the sureties in a judgment at law, 'Van Derveer u. Wright, 6 Barb. Eice, 9 Minn. 13; Caldwell i>. Sigour- (N. T.) 547. ney, 19 Ct. 37; Perkins v. Barstow, 6 ^ Welch V. Seymour, 28 Ct. 387. Rhode Is. 505; Zents' Exrs. o. Heart, *Hunt V, Bridgiiam, 2 Pick. 581; 8 Pa. St. 337; contra, Coleman v. Perham v. Raynall, 9 Moore, 566; Forbes, 22 Pa. St. 156. Craig V. Calloway County Court, 12 * Meade ». McDowell, 5 Binney (Pa.) Mo. 94; Prye v. Barker, 4 Pick. 382; 195. Joslyn V. Smith, IB Vt. 353; Pea=ie v. 'Batcliff v. Leunig, 30 Ind. 289. , Hirst, 10 Barn. & Cress. 122; Clark v. * Russell v. La Roque, 11 Ala. 352. Sigoumey, 17 Ct. 511; Whitaker v. 170 LIABILITT OF SURETY GENEEALLY. which has been enjoined by the unconscionable litigation of the principal, nntil it has become barred by the statute of limitations, are in privity with the principal, and bound to all the legal con- sequences of his acts, and will not, therefore, be allowed to avail themselves of the advantage of the statute thus obtained, and they will be enjoined in equity from setting it up at law.' The statute of limitations commences running in favor of a surety or guarantor from the time he is liable to suit, and this, as already seen, may or may not be the same time the principal becomes so liable.^ '■ Davis V. Hoopes, 33 Mis3. 173. 10 Richardson Law (So Car.) 543; Sol- ' On this subject, see the Governor v. lee v. Meugy, 1 Bailey Law (So. Car.) Stonum, 11 Ala. 679; Bank v. Knotts, 620. CHAPTEE IV. surety judgment against leases surety . . . . Surety not discliarged if principal released by act of law Whether surety bound when prin- cipal does not sign the obliga- tion . . . . . When surety bound for contract of infant or married woman, which is not binding on them . Discharge of surety does not re- lease principal Section, re- OF THE LIABILITY OF THE SURETY WHEN THE PRINCIPAL IS DISCHARGED, OR NOT ORIGINALLY BOUND. Section. When surety not liable if princi- cipal not bound. General prin- ciples 121 Discharge of principal generally releases surety . . ' . 122 Surety not discharged by release of principal when remedies against surety reserved, when he is fully indemniiied, etc. . 123 Miscellaneous cases on discharge of surety when principal is not bound, etc 124 When discharge of principal after 125 126 127 128 129 § 121. When surety not liable if principal not bound — Gen- eral Principles. — The obligation of a surety or guarantor is usually accessory to that of the principal, and as a general rule, wherever there is no principal there can be no surety; and whatever discharges the principal releases the surety. This is not, however, universally true. With reference to this, it has been well said that " A surety is not entitled to every excep- tion which the principal debtor may urge. He has a right to op- pose all which are inherent to the debt; not those which are per- sonal to the debtor. Pothier distinguishes them into exceptions in personam and exceptions in rem. The latter, which go to the contract itself, such as fraud, violence, or whatever entirely avoids the obligation, may be pleaded by the surety; but the former, which are grounded on the insolvency or partial solvency of the debtor, or which result from a cession of his property, or are the consequence of his minority, cannot be opposed to the creditor." ' Where a statute prohibited the making of a particular kind of 'Baldwin v. Gordon, 12 Martin (La.) 0. S. 378, per Porter, J. See, also. State V. Bugg, 6 Robinson (La.) 63; Jarratt v. Martin, 70 Nor. Car. 459. (171) 172 LIABILITY OF STJEETT. note by a bank, it was beld that such a note was void, and a guar- anty of tbe note was likewise void.' "Wbere property of the prin- cipal sufficient to satisfy the debt was levied on, it was held that such levy satisfied the debt as to the principal, and consequently as to the surety. The court said: "It would be as difficult for me to conceive of a surety's liability continuing after the princi- pal obligation was discharged, as of a shadow remaining after the substance was removed." " A justice of the peace required two parties who were before him for examination, to enter into a joint recognizance with surety, when he had no right to require a joint obligation from both, but only had power to require a several re- cognizance from each. Such a joint recognizance was given, and it was held that it was void as to the principals, and consequent- ly as to the surety. The court said: "It is a corollary, from the very definition of the contract of suretyship, that the obligation of the surety being accessory to the obligation of the principal debtor or obligor, it is of its essence that there should' be a valid obligation of such principal, and that the nullity of the princi- pal obligation necessarily induces the nullity of the accessory. "Without a principal, there can be no accessory. Nor can the obligation of the surety, as such, exceed that of the principal."" But a guaranty of a note, described therein by the name of its maker, its date, amount, and day .of payment, and which is shown to the guarantor, and a commission paid to him at the time of signing the guaranty, binds him to pay the note upon non-payment thereof by the maker, after the usual demand and notice, although the note is made payable to the maker's own or- der, and nevpr indorsed by him, and the want of such indorse- ment is not known to either party till after the day of payment. He had agreed to guaranty that particular instrument, and was bound by his obligation." It was agreed between the agent of a railroad company and the plaintifi", that no appeal should be taken from an award to be made in a pending arbitration between the company and the plaintiff, but both parties should abide the award. Thereupon, the president of the company, together with ' Swift V. Beers, 3 Denio, 70. Storrs, J. Holding, that because bond 'Farmera' & Mechanics' Bank v. is void as to principal because of du- Kingsley, 2 Douglass (Mich.) 379. See, ress, it is not void as to surety, who also, StuU V. Davison, 12 Bush (Ky.) was under no duress; see Jones o.Tur- 167; Evans v. Raper, 74 Nor. .Car. 639. ner, 5 Littell (Ky.) 147. "Ferry v. Burohard, 21 Ct. 597, per * Jones v. Thayer, 12 Gray, 443. DISCnAEGE OF PEINCIPAL EELEASES SUEETT. 173 the agent, personally guarantied to the plaintiff the performance hj the company of said agreement. Held, the guarantors were liable in case of a breach of the agreement, even if the latter was not binding on the company, and the guarantors were estopped from denying the existence of the company.' § 122. Discharge of principal generally releases surety. — As a general rule, if the principal is released by the creditor, without reservation, the surety is also thereby discharged. Thus, a joint judgment was obtained against the principals and sureties on a note. , The creditor agreed with one of the principals to discharge him from the judgment if he would give security for the pay- ment of about one-fourth of the amount thereof, and the security was accordingly given. Held, the sureties were thereby dis- charged. The Court said that if in such a case the surety was held liable, "he could not recover over against the principal, be- cause he is discharged from the debt, and owes the creditor noth- ing, and the surety could not recover for money paid to the use of the principal, as he owes nothing; and when the surety makes the payment, it cannot be for the use of the principal debtor." " A creditor agreed to accept from the principal 5s. in the pound in full of his demand, upon having a collateral security for that sum from a third person. He was induced to agree to this by the representation of the agent of the principal, that a surety would continue liable for the residue of the debt. Held, the surety was discharged. The representations being as to the legal effect of the instrument, were immaterial, and did not avoid it." A was indebted to B and others, and C was surety for the debt due B. Afterwards A became bankrupt, and all his creditors signed a com- position deed, agreeing to accept 7s. in the pound, in full payment of their claims, in drafts accepted by C as surety. B added before his name to the composition deed the words, "Without preju- dice to any additional security we may hold." Held, notwith- standing the reservation, B could not enforce C's original liability. If all the creditors had held securities from C for the full amount due them, then such a reservation would have made the composi- tion nugatory. Moreover, ^o allow B. to enforce this liability, might operate to the prejudice of the other creditors.* ' Mason D. Nichols, 22 Wis. 376. *Lewis». Jones,4Bam. &Cres3.506. » Trotter v. Strong, 63 111. 272; * Grundy ». Meighan, 7 Irish Law Brown v. Ayer, 24 Ga. 288. Kep. 519. 174 LIABILITY OF STJEETY. § 123. Surety not discharged by release of principal, when remedies against surety reserved, 'when he is fully indemnified, etc. — If the creditor, at the time he releases the principal, re- serves his remedies against the surety, such release amounts to a covenant not to sue only, and does not discharge the surety.' This has been held V7here the creditor by mistake executed an absolute release to the principal, but the agreement verbally was that the creditor's rights against the surety should be reserved.' By a mortgage deed the debtor covenanted to' pay the principal and interest of a debt, and a surety covenanted to pay the in- terest. The principal afterwards by deed assigned his property to a trustee, on trust, to ' sell and divide the proceeds among his creditors. The creditors released the debtor from the debts due them, respectively, but there was a proviso in the deed of release, that nothing therein should affect any right or remedy which any creditor might have against any other person in respect of any debt due by the principal. Held, the surety was not discharged. The court said: "The release cannot be construed to be abso- lute, because then no rights could be reserved in any case, and the courts have therefore held that such a release is not to be construed as absolute, but only as a covenant not to sue. That being so, the remedy is gone as between the debtor and creditor, inasmuch as the creditor cannot sue the debtor, but as against all other persons the rights of the creditor are reserved." ' Judg- ment was recovered against a surety, and a separate judgment was recovered against the principal, which included also other claims. The creditor afterwards offered to give the control of the judgment against the principal to the surety, but the surety refused it. Afterwards the creditor agreed with the principal that he never would enforce the judgment against him, and assigned the judgment against the principal to a third person for the principal's benefit, but he reserved the right to proceed on the judgment against the surety. Held, the surety was not • Bateson v. Gosling, Law Rep. 7 « Bank of Montreal v. McFaul, 17 Com. Pi. 9; Hall v. Thompson, 9 Up. Grant's Oh. R. 234. Can. C. P. R. 257; see, also. Wood v. ' Green v. Wynn, Law Rep. 4 Ch. Brett, 9 Grant's Ch. R. 452; Bell v. Appl. Cas. 204, per Lord Hatherly, C; Manning, U Grant's Ch. R. 142; affirming. Green ». Wynn, Law Rep. 7 Union Bank v. Beech, 3 Hurl. & Colt, Bq. Cas. 28. 672; to contrary effect, see Webb v. Hewitt, 3 Kay & Johns. 438. WHEN PRINCIPAL NOT BOrNIJ. IfS ' discharged.' A, B and C executed a joint and several bond, as guardians, with T as surety. The ward, after coming of age, executed a release to A, adding: " But this release is not to ap- ply to or aflfect my claims against B, my active guardian, and whose account remains unsettled." Held, in equity, that the release as to A was good, and that it was also a good defense to T, so far as he was surety for A, but that T remained bound for B and C." If, before the release of the principal, the surety has paid a part of the debt, and secured the remainder, such release will not discharge such surety.' A surety who is fully indem- nified is not discharged by the release of the principal. In such case the surety himself occupies the position of a principal." § 124. Miscellaneous cases on discharge of surety -when principal is not bound, etc. — Certain parties professing to be the representatives of a school district, made a note with sureties, and raised money on it to build a school house. The district had no power to borrow money for such a purpose, and it was held that it was not liable on the note, but that the sureties were liable thereon. ° It has been held that the discharge of one of two joint guardians by the Orphan's Court, does not discharge the surety on their official bond. This was put on the ground that the court had the power to do this when the surety became hound, and he must be presumed to have consented that it might be done.' A surety concurs with the principal in suggesting to the creditor, who is pressing for his money, to accept a transfer of a mortgage, which the principal knows to be fictitious, but the surety believes to be genuine. The creditor, believing the mort- gage to be gemiine, accepted it, released the surety, and erased his name from the securities. Upon the faith of this release, the friends of the surety advanced him money for the purpose of re- lieving him from all other liabilities. Upon discovery of the fraud, it was held that the creditor was entitled to be restored to all his rights against the surety, in the same manner as if he had never been released, nor his name erased from the securities.' ' Hubbell V. Carpenter, 5 New York, ■* Moore v. Paine, 12 Wend 123. 171. 5 Weare v. Sawyer, 44 New Hamp. ''Kirby v. Turner, 6 John's Ch. R. 198. 242; Kirby v. Taylor, Hopkins' Ch. R. « Hooker v. Woods' Exr. 83 Pa. St. 309. 466. 'Hallti.Hutchons, 3Mylne&Keen, 'Seholefield -o. Templer, 4 De- 426. Gex & Jones, 429; affirming, Scheie- 176 LIABILITY OF SDEETT. The period of limitation to actions on bonds was fifteen years, and against ofScers, for breaches of ofiicial duty, one year. Suit was brought on the official bond of an auditor against his sureties, for dereliction of duty on the part of the auditor more than a year after he went out of office. Held, the statute was a bar in favor of 'the sureties.' If the creditor sues the principal and takes judgment for less than the amount due, and such judgment is satisfied, he cannot maintain a suit against the surety for the remainder of the debt." A testator appointed, as his executors, two persons who were indebted to him on a bond — one as princi- pal, the other as surety. Held, the bond was discharged by the appointment of the principal as executor, and thereby became functus officio as to the surety.' § 125. When discharge of principal, after judgment against surety, releases surety. — If the principal is discharged because of matters inherent in the transaction, even after judgment against the surety, the latter will be exonerated thereby. Thus, a sheriff and his sureties were sued on his offlciaLbond for his non-feasance, and severed in their defenses. Judgment was rendered against the sureties on demurrer, and the next day the issue was tried against the sheriff and he was found not guilty. Held, the sure- ties might therefore maintain a bill to perpetually enjoin the judgment against them. The court said the rights of the surety were the same after as before judgment. When the liability of the principal ceases, that of the surety should cease also. This principle was controlling even though the sureties knew all the facts before the judgment against them, except the discharge of the principal. That was a fact which occurred after the judg- ment, and was the fact which discharged them." In a suit field V. Tenipler, Johns. (Eng. Ch.) accommodation drawer of a note is 155. ■ not released by the release of the ■ State V. Blate; 2 Ohio St. 147. payee, where the holder did not know « Couch V. Waring, 9 Ct. 261. of the suretyship, see Carstairs v. Rol- 3 Eichelberger v. Morris, 6 Watts leston, 1 Marshall, 207. Holding that (Pa.) 42. Where an instrument guar- the accommodation acceptor of a b 11 antied certain notes, the amount of of exchange is not discharged if the which was carried out and footed up, holder, who did not know of the sure- it was held the guarantor was liable tyship when he took the draft, after for the full amount, although the prin- learning that fact, releases the drawer, cipal was entitled to a reduction as See Howard Banking Company v. against the creditor, James v. Long, Welchman, 6 Bosw. (N. Y.) 280. 68 Nor. Car. 218. Holding that the *Ames v. Maclay, 14 Iowa, 281. WHEN PEINCIPAL EELEASED BY ACT OF LAW. 177 against a sheriif and the sureties on his official bond, judgment was recovered against all of thetn. The sheriff alone appealed, and on a final trial was acquitted. Held, the judgment against the sureties could not afterwards be enforced.' G sold B and W, negroes introduced into the State, in violation of law. B and W executed a note in part payment for the slaves, which M indorsed. G sued B and W at law, on the note, and they set up the illegality of the consideration thereof and were discharged. G at the same time sued M, the indorser, who being ignorant of the facts concerning the consideration, made no defense, and judgment was had against him. Held, M could sustain a bill for perpetual injunction as to the judgment against him, on the ground that his principal had been discharged, and this although he might have ascertained the facts, as to the consideration, by inquiry .° A bought slaves and gave his notes with B, as surety for the price. Having cause to rescind the sale, A brought suit to procure a rescission thereof. Pending such suit, the vendor brought suit against A and B on the note, and recovered judgment against B by default. A afterwards, in his rescission suit obtained a decree canceling the notes. Held, the effect of that decree was to dis- charge B.' The principal in a bond for the payment of money, was sued alone for a breach thereof, and upon pleas of payment and accord and satisfaction, there was a verdict and judgment in his favor. Held, this was not a defense to a surety who was afterwards sued on the same bond. The court said the judgment would not have been conclusive against the surety, if it had been against the principal, and should not be conclusive in his favor, when in favor of the principal." The fact that the discharge of the principal, should in such case of itself rel&ase the surety, seems to have been overlooked. § 126. Surety not discharged if principal released by act of law. — The discharge of the principal by the act of the law, in which the creditor does not participate, will not release the surety. A familiar illustration of this rule is that of the dis- charge of the principal in bankruptcy or under insolvent laws, in which case the surety is generally held not to be discharged ' Beall 1). Cochran, 18 Ga. 38. ^ Dickason v. Bell, 13 La. An. 249. " Miller ». Gaskins, ISmedes & Mar. * State Bank v. Eobinson, 13 Ark. Ch. R. (Miss.) 524. (8 Eng.) 214. 12 178 LIABILITY OF SUEETY. thereby." A creditor pending an action against a surety who con- tested his liability, proved the debt under a commission of bank- ruptcy against the principal, and by his signature enabled the bankrupt to obtain his certificate, though the surety had given him notice not to sign it. Held, the surety was not discharged.^ A state statute provided that " The obligation of the surety is accessory to tliat of his principal, and if the latter from any cause becomes extinct, the former ceases, of course." A princi- pal having been discharged in bankruptcy, it was held that the statute was only an affirmation of the common law, and the words " from any cause " meant any cause dependent on the act or negligence of the creditor, and that the surety was not dis- charged. The court said: " The discharge of the principal, which discharges a surety, must be a discharge by some act or neglect of the creditor, and a discharge by operation of law being as it is against the consent and beyond the power of the creditor, does not discharge the surety." ' Judgment having been recovered against a'debtor, he gave bond with surety that the judgment .should be paid within nine months. The debtor was afterwards arrested by virtue of the judgment, and discharged undef the in- •solvent law. Held, the surety was not thereby released. The -court said: "That the arrest on a capias ad satisfaciendum ism itself a satisfaction of the debt, is a positiqn not to be maintain- . lies, 3 Wels. Hurl. & Black. & Ell. 660. Gor. 880. ^Flores v. Howth, 5 Texas, 329. 200 LIABILITY OF SUEETY. bond with surety, conditioned for Ms good behavior " as such treasurer," the term of office of a treasurer then being during the pleasure of the governor. Afterwards a statute was passed pro- viding that the treasurer should be elected by the people, and hold office for three years. The same party was elected treasurer and gave a new bond. Held, the first set. of sureties were not liable for the treasurer's default after his election. They may have been willing to be bound for him, if he held office during the pleasure of the governor, but not if the holding was for a fixed term.' Subsequent to the passage of the United States internal revenue act of 1864, the assistant treasurer of the United States, and treas- urer of the branch mint at San Francisco, gave a bond conditioned as provided by the act of 18i6. The bond provided that he should faithfully discharge the duties of his office, and all " other duties as fiscal agents of the government, which may be imposed by this or any other act." The act of 1864, which provided that stamps might be furnished to assistant treasurers, also provided that bond for the payment for the same might be required from them. Said assistant treasurer got stamps for which he gave no new bond, and did not pay for them. Held, the sureties on the gen- eral bond were not liable for the stamps. If Congress had sup- posed the general bond covered the case, why was a new bond provided for? The general words in the bond should not cover the case. " We think these words only intended to include such duties as naturally and ordinarily belong to the particular officer giving the bond, or have some obvious relation to such duties, and such as the sureties, acquainted with the duties of the various pub- lic officers, as usually devolved upon tliem by law, might reason- ably be expected to conter.iplate at the time of executing the bond, as likely to be imposed upon their principal, in case the ex- igencies of government should require it, and not those duties which are more usually imposed upon, and more appropriately belong to an entirely different class of officers." " The sureties in a bond given by the register of wills for the performance of his duties generally, and the payment of all money received for the use of the State, are not responsible for collateral inheritance tax collected by him. The terms of his bond were broad enough to 'The Queen v. Hall, 1 Up. Can. C. cnrring; see, also, on this subject, to P. R. 406. same general effect, Holt v. McLean, ^ United States i>. Cheeseman, 3 Saw- 75 Nor. Car. 347. yer, 424, per Sawyer, J., Field, J., con- CIEOUMSTANOES LIMITING GENERAL OBLIGATION. 201 cover this tax, but the act establishing the tax provided for the giving of a special bond therefor. The court said: " It seems to us very plain, therefore, that the general bond is not intended to secure either payment of these collections, or the giving of the special bond to secure them." ' § 143. ^Vheu general obligation of surety limited by special circumstances. — A bank cashier gave a bond with sureties for his good behavior in office. The charter of the bank would have ex- pired in 1818, but before that time, and after the sureties signed the obligation, the charter was extended by act of the legislature. No new bond was given, but the cashier continued to act during the extended period. Held, the sureties were not liable for any of his defalcations, after the time when the original charter expired." M required machinery for a cheese factory, and gave A an order for it, which he refused to fill without security. B there- upon wrote to A as follows: " I recommend M to you, and if he should fail in his promise to you for anything in your way, I consider myself jointly liable for the amount of $200, payable in six moiiths to your firm." A thereupon filled the order. Held, the meaning of the guaranty, when considered with reference to the surrounding circumstances, was that it applied to the specific order M had given for machinery and to no other.' A and B executed a note for $4,000, payable on demand, the note being joint and several, and both appearing as principals, but B was in fact the surety of A, and that was known by a bank, to the cash- ier of which the note was payable. The note was made to ena- ble A to raise money at the bank. The bank advanced A, from time to time, over $32,000, all of which was paid, and then ad- vanced $2,000, which was not paid, and the bank thereupon sued A and B on the note. Held, B was not liable. The note was no more than an express guaranty for $4,000, and was exhausted by the first advance of that amount.* The bond of the treasurer of a manufacturing corporation provided for the faithful discharge of his duties " during the time for which he had been elected, and for and during such further time as he * (might) continue therein by any re-election or otherwise." He was re-elected at the next annual election, and served five months of that term, and then re- ' Common wealth ». Toms, 45 Pa. St. ^ Boyle v. Bradley, 26 Up. Can. C. 408. P. R. 373. 'Thompson ». Young, 2 Ohio, 335. *Agawam Bank ti. Strever, 16 Barb. (N. Y.) 82. 202 LIABILITY OF SUEETT. signed, and his successor was appointed and held seven months; at the next annual election, the first treasurer was elected again, and served, and committed defaults. Held, the sureties were not liable for such defaults. They were liable for more than one year by the express terms of the bond, but were only liable for a con- tinuous holding. The fact that for awhile the principal did not hold the office, ended the liability of the sureties. " The word ' continue ' excludes all idea of intermission in the office.'" § 144. 'When sureties on bond of annual officer bound for more than a year. — While sureties On the general bond of an annual officer are usually held to be liable only for one year, be- cause such is presumed to have been the intention of the parties, yet there is nothing to prevent such sureties from becoming bound for a longer time, and, if an intention to that effect clearly and unequivocally appears, they will be so held. Thus, the office of treasurer of a borough being annual, A was appointed thereto, and gave bond conditioned for the due accounting for all such moneys as he should or might recover or receive " in virtue of * said appointment as treasurer, as aforesaid, during the whole time of * continuing in said office, in consequence ot the said election, or under any annual or other future election of the said council to said office." Afterwards, and during the year, the term of office was by statute changed to a holding during the pleasure of the council, and at the expiration of the year A was again appointed treasurer, and continued in office a long time. Held, the sureties were liable for defaults of A happening after the first year.^ By statute, the commission of an auctioneer did n<)t necessarily expire in one year, but might continue for thi'ee years without renewal of his bond. M. having applied for ap- pointment as auctioneer, gave bond conditioned that he should perform all the duties of auctioneer, etc., " during the period he * (should) continue to act as auctioneer under the commission that * (might) be granted to him." He was afterwards com- missioned for one year. Held, the liability of the sureties did not expire in one year, but continued while M acted as auctioneer.' A bond given to secure the faithful performance of his duties 'Middlesex Manf. Co. v. Lawrence, 331. Holding the sureties on a guar- 1 Allen, 389 per Dewey, J. dian's second bond, given upon his 'Oswald V. Mayor of Berwick,. 5 removal to a new county, liable for House of Lords, Cas. 856. a defalcation before committed by him, = Daly V. Commonwealth, 75 Pa. St. see State v. Stewart, 86 Miss. 652. SUEETY OF ANNUAL OFFICEE BOUND LONaEE THAN A TEAE. 203 by a collector of parochial rates (wlio was by statute to be appointed by trustees for a year and then to be capable of re-elec- tion), was conditioned that " from time to time, and at all times thereafter, during such time as he should continue in his said office, whether by virtue of his said appointment, or of any re-appointment thereto, or of any such retainer or employment by or under the authority of the said trustees, or their siiccessors, to be elected in the manner directed by the said act, he should use his best endeavor to collect the moneys received by means of the rates in the then present or in any subsequent year." Held, the obligation of the bond was not confined to the year for which he was originally appointed, but extended also to all subsequent years in which he was continuously re-appointed.* A statute provided that the sureties of a clerk should be liable for the whole period he might continue in office, and his bond provided for his good behavior "during the whole period the said * shall or may continue in the said office." The clerk was re-elected for a new term, but gave no new bond. Held, the sureties on his original bond were liable for his acts during his second term. The Court based its decision upon the express provisions of the statute and the terms of the bond, and held that a recital in the beginning of the bond, that the clerk had been elected for four years did not change the result." The commission of a collector of customs appointed him " a collector of Her Majesty's customs in the province of Canada," and the bond was conditioned for the performance of his duties generally. In a suit on the bond, the surety plead that the bond was executed in reference to the office of collector at B, and that he made no de- fault while at B, but was transferred to another place, and there made default. Held, the plea was bad, as the bond was clearly gen- eral and could not be narrowed in its application by alleging that something less was meant." In 1831, while a statute was in force which provided that a cashier should hold his office until remov- ed therefrom or another was appointed in his stead, a cashier was appointed, and gave bond for the faithful discharge of the duties of his office. In 1832 he was re-appointed, but gave no new bond. The record of his appointment both times stated ' Augero v. Keen, 1 Mees. & Wels. ^ Treasurers v. Lang, 2 Bailey Law 390. (So. Car.) 430; = Regina v. Miller, 20 Up. Can. Q. B. R. 485. 204 LIABILITY OF SUBETT. that he was appointed "for the year ensuing." He held the of- fice without any new appointment till 1836, when he committed a default. Held, the sureties on the bond given when he was first appointed, were liable therefor. The law made the office a continuing one, and the parties had this fact in contemplation when the bond was made.' § 145. When general words of obligation not limited by other ■words or circumstances. — The liability of sureties on the general bond of a manufacturer of tobacco, given in pursuance of the United States revenue law, does not cease upon the expii'atiou of his license as such manufacturer. The provision of the law making the neglect of a manufacturer of tobacco to procure a license a punishable offense, was not designed for the benefit of sureties, but to protect the government against the frauds of the manufacturer." The office of tax collector continued two years, but the law required the collector to give a bond as to the state taxes every year. The bond given by a collector on going into office, recited that he had been elected for two years, and provided that he should " well and truly collect all state taxes which, by law, he ought to collect, and well and truly account for and pay over all taxes by him collected, or which ought to be by him col- lected, according to law:" Held, the sureties were liable for the state taxes received by the collector the second year.' A statute provided that a sheriff should hold office for one year, and might " with his own consent and the approbation of the executive, be continued for two years." The first year a sheriff held office, a deputy gave bond conditioned for his good behavior " for and during the time said * (sheriff ) may continue in office." The sheriff continued in office two years: Held, the sureties on the bond of the deputy were liable for his acts during the second year.' "When the bond of an officer is general in its terms, and the office is not annual, the liability of the surety is not, in the absence of special circumstances, limited to a year.^ A party was elected cashier of a bank in 1814, when it was first organized, and again in 1815 and 1817, by directors chosen annually, and he continued to act as cashier from his first election till 1823, when he com- ' Amherst Bank v. Root, 2 Met. "Allison v. The State, 8 Heisk. (Mass.) 622. (Tenn.) 312. » United States v. Truesdell, 2 Bond, * Jacobs v. Hill, 2 Leigh (Va.), 393. 78. 5 Mayor of Birmingham v. Wright, 16 Ad. & Ell. N. S. 623. CIECtJMSTANCES NOT LIMITING- GENEEAl OBLIGATION. 205 mitted a breach of duty: Held, a bond giren by him, with sureties, upon his first election, for the faithful performance of his duties " so long as he should continue in said office," covered this breach of duty, it not appearing in the bond or the charter, or regula- tions of the bank, that the office was annual. " There was nothing to make the sureties suppose it was limited to a year." ' A deed of guaranty made in Lower Canada by C, recited that one M, who had been a member of the firm of C & Sons, required pecu- niary assistance to meet the engagements of that firm, which was agreed to be affiarded by a bank, and by such guaranty C and others agreed to become sureties for all the then present and fu- ture liabilities of M with the bank. M contracted debts with the bank which had no reference to the firm of C & Co. : Held, that although the recital in the instrument was special, yet it did not control the generality of the subsequent operative words, and that the guarantors were liable for such advances.' § 146. When general words of obligation not limited by other words or circumstances, — By statute the term of office of the chairman of the superintendents of schools continued for one year, and until his successor was appointed. Held, the sureties on his bond were liable for money received by him more than a year after he Vas appointed, he being then in office, and no suc- cessor having been appointed; the decision being put upon the ground that his term of office continued until a successor was appointed.' A bond recited that A had been taken into the ser- vice of a bank, as a writing clerk, and was conditioned for his due performance of that service, " and all and every other service of the * (bank), wherein he is, or shall, or may be, employed." He was afterwards appointed cashier of a branch bank of the bank to which the bond ran, and afterwards made default. Held, his sureties were liable for such default.' A bond recited that the principal had been appointed accountant in a bank, and provided that he should well and faithfully perform all duties in the bank which from time to time might be required of him, and should faithfully account for all moneys which might be entrusted to his care, and should " also continue in said service for the term of ' Dedham Bank ». Chickering, 3 ' Chairman of Schools v. Daniel, 6 Pick. 335, per Parker, C. J. Jones Law (Nor. Car.) 444. ° Bank of British North America ». * Thompson v. Roberts, 17 Irish Cuvillier, 14 Moore's Privy Council, Com. Law Rep. 490, held by a divided Cas. 187. Court. 206 LIABILITY OF SUEETT. two years, unless sooner discharged." Held, the bond covered the acts of the accountant as long as he continued in the office, and was not limited to two years.^ The defendant, as surety, ex- ecuted a bond, the condition of which recited an agreement be- tween the directors of an East India railway company and P, whereby it was agreed that P should forthwith proceed to such place in the East Indies, at such time and by such conveyance as the company should direct, and should there serve the compa- ny at a certain salary per month, to commence on the day of his embarkation at Southampton. The condition was in the terms of the recited agreement, but mentioned no place of embarka- tion. The company paid P's passage on a vessel about to leave Southampton, but the vessel left before he was ready, and the company directed him to go to Marseilles and meet the vessel. This he failed to do, nor did he go to the East Indies. Held, the surety was liable. The words in the recital, " his embarkation at Southampton," only referred to the time his salary was to com- mence. The surety agreed that he should go in the manner the company directed, and the general words were not restrained by anything in the recital.'' The bond of a note clerk in a bank provided for the faithful performance of his duties, and recited that he " had been appointed note clerk, to continue in office dur- ing the will of the present or any future board of directors of said bank." The directors of the bank were annual officers, but there was no limitation as to the time a note clerk should con-' tinue in office. Held, the liability of the sureties on the clerk's bond was not limited to one year. The clerk was not clerk of the directors, but of the bank, and the term of office of the clerk was not limited by the official term of the directors.' •Worcester Bank v. Eeed, 9 Mass. "Louisiana State Bank v. Ledoux, 3 267. La. An. 674. « Evans v. Earle, 1 Hurl. & Gor. 1. OHAPTEE YII. OF THE LIABILITY OF ACCOMMODATION PARTIES TO NEGO- TIABLE INSTRUMENTS, AND OF THE BLANK INDOESEK OF ANOTHER'S OBLIGATION. Section. When stranger to a note, wlio in- dorses it in blank, is guaran- tor ... . 147,148 When blank indorser of a note is not a guarantor . . . 149 Cases holding blank indorser of note liable as indorser, and ex- press guarantor liable as ma- ker When blank indorser of note is liable as joint maker Liability of blank indorser. Gen- eral observations 150 151 152 Section. Liability of blank indorser may be shown by parol. Writing unauthorized agreement above blank indorsement does not viti- ate actual agreement . 153 When indorsement in terms ex- presses liability of indorser, he is held according to such terms . 154 Liability of indorsers under special indorsements and circumstances 155 Liability of accommodation parties to bills of exchange. Special cases 156 § 147. When stranger to a note, -vrho indorses it in blank, is guarantor. — As to what is the precise liability of a stranger to an obligation who indorses it in blank, there is great conflict among the decided cases. The weight of authority is, that a stranger to a promissory note, payable to a particular person, who at or be- fore the time of its delivery to the payee indorses it in blank, is, in the absence of evidence as to the liability intended to be as- sumed, liable as guarantor. The reasoning upon which these de- cisions are based is that such indorser intended to assume some liability. If he had intended to become a joint maker, he would have signed the note on its face. Not being a party to the note, the title to it does not pass by his indorsement, and he is not li- able as indorser. And being neither principal nor indorser, in order to effectuate the presumed intention of the parties, he will be held liable as guarantor.' The same thing has been held Trader, 1 Nevada, 380; Heintz v. Cahn, 29 III. 808; Cushman v. De- ment, 3 Scam. (111.) 497; Klein i). Cur- rier, 14 111. 237 J Watson v. Hurt, 6 'Finnan v. Blood, 2 Kansas, 496; Chandler v. Westfall, 30 Texas, 475; Pahlman v. Taylor, 75 111. 629; Fuller V. Scott, 8 Kansas, 25; Van Doren v. (207) 208 ACCOMMODATION PAETIES TO NEGOTIABLE INSTEITMENTS. where a stranger to a note indorsed it in blank after it was deliv- ered by the payee.' In such cases the holder of the note may at the time of the trial or any time before, write a guaranty over the name of the indorser,'' and this may be done after the death of the indorser." A party gave a storage receipt for grain, and a stranger to it indorsed it in blank for the purpose of becoming a guarantor. The grain was not delivered, and the holder of the receipt filled the blank above the name of the indorser with a guaranty, and sued on it. Held, the blank might be so filled, and that this took the case out of the Statute of Frauds. The court said: " On such an instrument he (the indorser) cannot become liable as indorser; nor can he become liable as maker unless he places his name on the instrument at the time of its execution, and as in such case, he manifestly intends to become liable in some capacity or other to the holder, it can only be as guarantor." * In the absence of evidence the presumption is that the blank indorsement of a note by a stranger was made at the time the note was executed.' And the same presumption exists where the instrument upon which the indorsement is made, is a receipt for the delivery of grain, and not negotiable.^ It has been held that if the blank in- dorsement of a note by a stranger to it, is made after it has been in circulation, the indorser will not, in the absence of proof, be held as guarantor, but will be held as indorser simply, the pre- sumption being that the note was transferred from holder to holder by blank indorsement.' A stranger to a bond, who indorsed it in blank and transferred it to his creditor in payment of a debt, has been held liable as guarantor.' § 148. When stranger to a note Tvho indorses it in blank is Gratt. (Va.) 633; Camden v. MoKoy, contra, Needhama v. Page, 3 B. Mon. 3 Scam. (111.) 437; Horton v. Maiming, (Ky.) 465. 37 Texas, 23; Clark v. Merriam, 25 » Horton i>. Manning, 37 Texas, 23. Coim. 576; Champion ». Griffith, 13 * Underwood u.'Hossack, 38 111. 208, Ohio, 228; contra, Levi v. Mendell, 1 per Walker, J. Duvall (Ky.) 77. ' Carroll v. Weld, 13 111. 682; Web- ' Thomas v. Jennings, 5 Smedes & ster v. Cobb, 17 111. 459 ; White v. Mar. (Miss.) 627; Killian v. Ashley, Weaver, 41 111. 409; Boynton ». 24 Ark. 511; Stagg v. Linnenfelser, 59 Pierce, 79 111. 145; Cook v. Southwick, Mo. 336. 9 Texas, 615. i! Boynton v. Pierce, 79 111, 145 Fear u. Dunlap, 1 Greene (loa.) 331 Chandler v. Westfall, 30 Texas, 475 Gist V. Drakely, 2 Gill, (Md.) 330 Leech v. Hill, 4 Watts, (Pa.) 448 « Underwood e. Hossack, 38 111. 208. 'Webster v. Cobb, 17 111. 459; White D. Weaver, 41 111. 409. ^Keames v. Montgomery, 4 West Va. 29. BLAlfK INDOESEMENT BT STEANGER. 209 guarantor. — By the common law of Connecticut, the blank in- dorsement of a note (negotiable or not negotiable) by a stranger to it, in the absence of evidence, implies prima fadte a contract on the part of the indorser that the note is due and payable ac- cording to its tenor; that the maker shall be of ability to pay it when it comes to maturity, and that it is collectible by due dili- gence on the part of the holder.' Another court has held that when a person not before a party to a note, puts his name on its back out of the course of regular negotiability, he is not an in- dorser according to the strict commercial sense of that term. " He is termed a guarantor, and this is so whether his inscription is simply in blank, or preceded by the words ' I guaranty.' * A name written on the back of a note gave to the writer his title of indorser, and fixed the character of his liability. If the name was written without regular succession, according to commercial usage, a distinction in the description of the latter was instituted, and he was called ' guarantor.' This distinction, however, was only in name; the act performed by each is precisely the same; and it is a well settled and safe rule that the act discloses the intent. * Where one writes his name on the back of a promissory note, either in blank or accompanied by the use of general terms, his undertaking is attended with all the rights and all the liabil- ity of an indorser stricti juris." " In a later case in the same court, it is held that where a person not before a party to a note, indorses it before its delivery, his liability is that of a surety, and demand and notice are necessary in order to fix his liability, and the doctrine of tlie case last referred to is fully approved. The court said: "In England lie is held to be a guarantor, and his contract is that the maker of the note will pay at maturity, or, if he does not, the guarantor will. ]S"o demand or notice is con- sidered necessary as a condition precedent to fix the liability of the guarantor." After saying there was great conflict of author- ity, the court, speaking of guarantor and indorser, proceed- ed: "Each undertakes that the maker will pay the note at maturity, and in case of being compelled to pay it for the principal, each* has recourse upon his principal to recover ' Ranson v. Sherwood, 26 Conn. 437. Conn. 223; Perkins v. Catlin, 11 Conn. For other decisions of the same court, 213. on this subject, see Clark ». Merriam, ^Rigga ». Waldo, 2 Cal. 485, per 25 Conn. 576; Castle v. Candee, 16 Heydenfeldt, J. 14 210 ACCOMMODATION PAETIES TO NEGOTIABLE INSTEUMENTS. the' amount paid.'" The law on tliis subject has been thus stated by another court : " The mere indorsement upon a note, of a stranger's name in blank, is prima facie evi- dence of guaranty. To charge such person as a maker, there must be proof that his indorsement was made at the time of exe- cution by the other party, or if afterwards, that it was in pursu- ance of an agreement or intention that he should become respon- sible from the date of the execution. Such agreement or intention may be proved by parol. The rule is the same whether the in- strument is negotiable or not." ' A made his note payable to B. It was afterwards transferred to C, who for a valuable considera- tion transferred it to D, and at the same time wrote his name in blank on its back. There was no other name on the back of the note. Held, C was liable as guarantor. The court said : " The defendant cannot be charged as a surety, for he was no party to the original contract. * Nor can he be charged as indorser, for the note was not indorsed by the payee." ' A party made a note payable to himself or order, and two parties, strangers to the note, indorsed it. The blank above the names of the indorsers were filled with separate guaranties, and then the maker indorsed it and delivered it to the holder. Held, the indorsers were not liable as guarantors but as indorsers. " Where the note creates no valid obligation against the maker, and can create none until it is indorsed and transferred by the payee, the presumption is that the person writing his name in blank upon the back of the note, assumes the obligation of an indorser. Inasmuch as the note can never have any validity until the name of the payee ap- pears upon it as an indorser, the person writing his name in blank upon the note, understands that when the note takes effect, Ms name will appear upon it as a second indorser, and it is rea- ' Jones V. Goodwin, 39 Cal. 493. In mled by And v. Magmder, 10 Cal. 282. Bryan v. Berry, 6 Cal. 394, the Sn- The decisions on this subject in Cali- preme Court of California decided that fomia are very inharmonious. For it made no diflference on what part of other cases, see Pierce v. Kennedy, 5 u note the name of a party who was Cal. 138; Brady ». Reynolds, 13 Cal. 31. secondarily liable appeared, he was ''Champion ». Griffith, 13 Ohio, 228. liable as indorser. It did not pro- For other decisions of the same court, fess to foUow authority, which it said on this subject, see Parker v. Riddle, was full of refinements arid contradic- 11 Ohio, 102; Seymour v. Mickey, 15 tions, but professed to adopt a safe and Ohio St. 515. ■certain rule, free from all obscurity. ^Whiton v. Mears, 11 Met. (Mass.) Bryan v. Berry was, however, over- 563. BLAKK INDORSEMENT BT STEANGEE. 211 sonable to conclude that such was the position which he intended to occupy." And all persons receiving such note are by its form notified of these facts.' § 149. When the blank indorser of a note is not a guarantor. — After a promissory note became due, the holder agreed to ex- tend the time of payment about ten months, if the maker would get F to indorse the note. Without knowing of this agreement, F indorsed the note in blank, only writing over his signature the date of making it. In a suit against F on the note, it was held he was not a maker nor indorser, and could not be held as guarantor, because a guaranty m.ust be in writing, and if such, a guaranty might have been written over the signature, it had not been done.' The payee of a note indorsed it in blank. A guar- anty was written over his name in a different hand. Held, the presumption was that the indorser was an assignor, and only sec- ondarily liable. The court said : " The fact that a contract of guar- anty is found written above the name of the indorser, in a hand- writing not his own, would not of itself be sufficient to raise a presumption that it was done by his authority, or that the con- tract was there when he wrote his name, because the presence of his name is to be accounted for by the fact that as payee of the note, it was necessary for him to indorse, it in order to give it ne- gotiability. To hold that any person through whose hands a note may pass, can write a guaranty over a blank indorsement, and then require the indorser to disprove it, would be fruitful of fraud, and dangerous to every person who has occasion to receive and indorse a promissory note." ° It has been held that where the name of a stranger to a note occupies the position as a sec- ond indorser, he cannot be held as guarantor, unless it is established by extraneous evidence that he agreed to become a guarantor.* Upon a note in this form: "We, A and B, as principal, arid and J) as surety, promise to pay to the order of ourselves," etc., and signed on its face only by A and B, and , indorsed successively by A, B, C and D, the liability of D is that of surety or joint promisor in a note payable to the order of the principals and by them indorsed. It was claimed that he 'Blatchford v. Milliken, 35 111. 484, Lawrence, J.; see, also, on similax per Beckwith, J. point, Klein v. Currier, 14 111. 237. " Moore v. Folsom, 14 Minn. 340. funds in the hands of the drawee to meet the payment of the bill at maturity, in con- sequence of which the latter has it to pay with his own funds, a right of action instantly arises in his favor, not, indeed, upon the bill, but in assumpsit, to recover the money thus advanced, founded upon an implied promise. This is one of the known fixed legal con- sequences resulting from the relation of drawer. * Upon gen- eral principles of law, the liability of a surety is co-extensive with that of the principal, and it is wholly unimportant whether the liability arises out of an express or implied understanding on the part of the principal. The surety is as much bound for the implied as for the express promises and undertakings of his prin- cipal; in this respect the law knows no distinction."' It has been held that the accommodation acceptor of a bill of exchange is not a surety, and is not discharged by time given the drawer. The court said: " He who accepts a bill, whether for value or to serve a fi-iend, makes himself at all events liable as acceptor, and nothing can discharge him but payment or release." ' A drew a draft at two months, addressed to E, payable to the order of B, and concluding as follows: " Charge the same to the account of your obedient servant." It was signed first by A, and then by 0, the word " surety" being added to O's signature, and then as follows: D, "surety for the above surety." D signed the draft without C's knowledge. B discounted the draft, and sent it to E, who paid it without funds, under an agreement to that effect with A; afterwards D paid the draft to E, and sued for indemnity. Held, he was not entitled to recover. was not liable by the terms of the draft to the acceptors, and was liable to nobody on the draft unless the acceptors failed to pay, being in effect their sureties. Neither was he liable for money paid to his use, be- cause he never desired, the acceptors to advance any money for him.' 1 Nelson v. Richardson, 4 Sneed, "Pentum v. Pocock, 5 Taunt. 192; (Tenn.) 307, per McKinney, J. To Id. 1 Marshall, 14, per Mansfield, C. J. same effect, see Diokerson v. Turner, 'Wright v. Garlinghouse, 26 New 15 Ind. 4; Suydam v. Westfall, 2 De- York, 539. nio, 205; reversing Suydam v. West- faU, 4 HiU, 211. CHAPTEE YIII. OF THE NOTICE AND DEMAND NECESSARY TO CHARGE A GUAEANTOE. Section. When guarantor must be notd- fledof acceptance of guaranty. Reasons therefor . . . 157 Writer of general letter of credit entitled to notice of its accept- ance 158 When writer of guaranty, address- ed to a particular person, must be notified of its acceptance . 159 When guarantor entitled to notice of acceptance of guaranty. Special cases . 160, 161, 162 When guarantor must be notified of advances made under guar- anty 163 When guarantor of definite lia- bility of another not entitled to notice of acceptance of guaranty 164 When guarantor not entitled to notice of acceptance of guaran- ty. Special cases . . . 165 When guarantor not entitled to notice of advances made to principal .... 166 Cases holding guarantor for indef- inite amount,on credit to be giv- en, not entitled to notice of ac- ceptance of guaranty . .167 Section. When guarantor entitled to notice of default of principal When demand of payment on principal and notice of his de- fault necessary to charge guar- antor .... When demand of payment on principal and notice of his de- fault necessary to charge guar- antor. Guarantor of promis- sory note, etc. . When guarantor bound without notice of default of principal. Other cases .... When no notice of default in pay- ment by principal need be given to guarantor of over-due debt, of lease, and of negotiable in- strument by separate contract . If principal be insolvent when debt becomes due, no demand on him nor notice of his default to guarantor necessary What is the reasonable time with- in which the notice must be given. Pleading How notice may be proved. What amounts to waiver of it . 168 169 170 171 172 173 174 175 § 157. When guarantor must be notified of acceptance of guaranty — Reasons therefor. — A question often arising upon commercial guaranties is, whether in order to charge the guar- antor it is necessary that he be notified of the acceptance of the guaranty by the person acting upon it. When the guaranty is a letter of credit, or is an offer to become responsible for a credit which may or may not be given to another, at the option of the (221) 222 NOTICE AND DEMAND. party to whom the application for credit is made, the great weight of authority is that the guarantor must within a reasonable time be notified of the acceptance of the guaranty.' The most satis- factory reasons exist for these decisions. It is of the highest im- portance to the person thus offering his credit, that he should know he is to be looked to for payment. Knowing that fact, he can regulate his dealings with his principal accordingly. He will have an opportunity to secure himself and guard against loss. Concerning this subject, it has been said : " It would, in- deed, be an extraordinary departure from that exactness and pre- cision 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." ^ Another reason much relied upon by the courts, is that the transaction only amounts to an offer to gauranty until the party making the offer is notified of its acceptance, when the minds of the 'parties meet and the contract is completed. Where the transaction is admitted to amount only to an offer to guaranty, it is universally held that in order to charge the party making the offer, he must within a reasonable time be notified that his offer is accepted. The courts, however, differ more or less as to what is a guaranty, and what is an offer to guaranty. § 158. 'Writer of general letter of credit entitled to notice of its acceptance. — The rule that a guarantor of future credits is entitled to notice, applies with special force to general letters of ' This is the firmly settled dociaine v. French,? Greenl. (Me.J 115; Kellogg of the Supreme Court of the United v. Stockton, 29 Pa. St. 460; Bank of States,Edmondston». Drake, 5 Peters, Illinois ». Sloo, 16 La. (Cun-y) 539; 624; Douglass v. Reynolds, 7 Peters, Menard e. Scudder, 7 La. An. 385; 118; Lee». Dick, 10 Peters,482; Adams Einchelse v. Holmes, 7 B. Mon. (Ky.) V. Jones, 12 Peters, 207. These decis- 5; Allen v. Pike, 3 Gush. 238; Mussey ions have been, with few exceptions, v. Rayner, 22 Pick. 223; Rankin ». followed and approved in the United Childs, 9 Mo. 665; Mayfield v. Wheeler, 8tates; Lawton ». Maner, 9 Rich. Law 37 Texas, 256; McCollum ». Gushing, (So.Car.) 385; Sollee«. Meugy, 1 Bailey 22 Ark. 540; Howe v. Nickels, 22 Me. Law(So.Car.)620;Glaflin«.Briant,58 175; Geiger v. Clark, 18 Cal. 579; Ga. 414; Burns u. Semmes,4CranchCir. Cook v. Ome, 37 111. 186. Ct. 702; Shewell D. Knox, 1 Dev. Law «Edmondston v. Drake, 5 Peters, (Nor. Car.) 404; Taylor v. McClung's 624, per Marshall, C. J. Ex'rs. 2 Houston (Del ) 24; Tuckerman fiENBEAIi LETTEE OF CEEDIT. 223 credit: "For it might otherwise be impracticable for the guaran- tor to know to whom and under what circumstances the guaranty attached, and to what period it might be protracted." ^ A party gave a letter of credit to another, agreeing to guaranty payment for purchases made by that other, to a certain amount. The party purchased goods on the strength of the guaranty, but no notice was given the guarantors Held, he was not liable. The court said: "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 on the footing of it or not. It may be most material, not only as to his responsibility, but as to his future rights and proceedings. It may regulate, in a great measure, his course of conduct and his exercise of vigilance in re- gard to the party in whose favor it is given." " A wrote to B, that if he would assume the debt of C, and procure the discharge of C's bail, he, A, would execute his note for 501. B complied with the request, but did not notify A of the fact: Held, A was not liable. The court said: "When a proposition is made by a man for a thing to be done for himself, he must know when done, that it is done on his proposition. But when he proposes his respon- sibility for a thing to be done for another, he may not know that it is done, or even if he does, he will not know whether it was done on his proposition, or on the sole credit of the third person, or on some other security. * If he is to stand as surety, he must have the right to keep watch of his principal and his circum- stances." ^ A gave B a letter of credit addressed to C in a distant city, and agreeing to guaranty any purchases which might be made by B of 0, or any person to whom B might be introduced by 0. Several parties sold goods on the strength of the guaranty, but no notice was given to A: Held, A was not bound.* A writing was as follows: " The bearer, * wishing to travel with my son, please furnish with a suitable stock, and all will be right:" Held, an offer to guaranty, and that the writer was not liable, unless the proposition was accepted, and ' Per Story, J., in Adams v. Jones, * Kinchelse v. Holmes, 7 B. Mon. 12 Peters, 207. (Ky.) 5. To the same eSect, when the 'McCollum ». Gushing, 22 Ark. .540, guaranty was a continuing' one, ad- per English, C. J. dressed to no one in particular, see ^Oaks V. Weller, 13 Vt. 106, per Menaxd ». Scudder, 7 La. An. 385. CoUamer, J. See, also, Peck v. Bar- ney, 13 Vt. 93. 224 NOTICE AND DEMAITO. he notified of such acceptance. The court said: "A mere offer not accepted, is not a contract; and a mere- mental ac- ceptance of a proposition not communicated to the party to be charged, is not an acceptance at all in the eye of the law. It is important to the interests of the business community that every one should kno^w the extent of his liabilities, in order that he may take the proper measures to meet them." ' A banker being in failing circumstances and anticipating a run on his bank, certain persons signed and published an instrument as follows: " "We, the undersigned, agree to guaranty the depositors of Wm. E. Culver in the payment in full of their demands against said Culver, on account of money deposited with him. We have entire confi- dence in his ability to meet all demands on him." A depositor brought suit on this guaranty, alleging that he had a large amount of money in the bank when the guaranty was signed, and was about to withdraw it, but relying on the guaranty he per- mitted it to remain. Held, that under this state of facts such depositor must aver and prove notice to the guarantors of the ac- ceptance of the guaranty, and a general averment of notice would not be sufficient. The court said " Where the offer is to guaranty a debt for which another is primarily liable in consid- eration of some act to be performed by the creditor, mere per- formance of the act is not sufficient to fix the liability of the guarantor, but the creditor must notify the guarantor of his acceptance of the offer, or of his intention to act upon it. * The rule is that a person thus proposing to become surety for another is not bound to inquire as to the acceptance of his pro- posal, "but the creditor must show reasonable notice."'' § 159. When writer of guaranty, addressed to a particular per- son, must be notified of its acceptance. — The rule is generally held to be the same where the writing is addressed to a partic- ular person and is acted on by him. Thus, where a guaranty was as follows: "Gentlemen: * (A and B) wish to draw on you at six and eight months: you will please accept their draft for 2,000 dollars, and I do hereby guaranty the punctual payment of it," it was held the guarantor must be notified within a reasonable time of the acceptance of the draft.' A guaranty was as follows: 'Kellogg B. Stockton, 29 Pa. St. "Steadman?;. Guthrie, 4 Met. (Ky.) 460, per Lewis, C. J. 147. 'Lee V. Dick, 10 Peters, 482. GrAEANTY ADDEESSED TO A PAETICDLAE PEESON. 225 " I would recommend * (A) and go security for him to any rea- sonable amount, so you can fill his orders and feel yourself secure as when I was doing business with you." Held, the guarantor was not liable unless notified of the acceptance of the guaranty. The court said it made no difierence if the guarantor had before verbally requested the creditor to give the credit, and proceeded: "It is difiicult to imagine how precedent request alone can sup- ply the place of subsequent notice, since after request made and profier of guaranty, the merchant may refuse the credit or ad- vance craved, and without notice the surety cannot know whether he has or not." ' A applied to R to purchase lumber to build a ferry boat, and R refused to credit him without security. A men- tioned the name of C as surety, and his name was acceptable. A few days afterwards A presented an order for the lumber in C's handwriting, at the foot of which was written " Messrs. Rankins (E) will furnish the above bill as soon as possible, and I will order what more I may want for my boat in a short time. James McOourtney (A). I hereby guarantee the payment of the above bill, January 29th, 1842. Wm. Childs " (0). The lumber was afterwards sold. Held, C must be notified of the acceptance of the guaranty in order to charge him." The same thing was held where the defendants wrote to the plaintiflFs as follows : " We take pleasure in commending Mr. C. to you as a gentleman worthy of your confidence, and if he should have any dealing with you we hereby bind ourselves to make good and pay any amount he may be indebted to you on settlement, not ex ceeding $1,500. This guaranty to remain in full force until revoked by us." * Where the writing was as follows : " For value received, I, Moses Dudley, of Chesterfield, 'New Hampshire, guaranty to pay James M. Beebe & Co., of Boston, for two thousand dollars' worth of goods delivered to Charles P. Dudley, of Lowell, when he may call for them," it was held that as the engagement related to goods to be delivered, and no time was lixed within which the delivery was to be made, it was a collateral agreement or guaranty, and not an absolute undertaking, and that the guarantor must in order to charge him, be notified within a 'Kay V. AUcM, 9 Pa. St. 320, per ^Wardlaw v. Harrison, H Rich. Bell, J. Law. (So. Car.) 626. 'Rankin v. Childs, 9 Mo. 665. 15 226 NOTICE AND DEMAND, reasonable time of sales made under it.' Where the maker of a continuing guaranty had no notice of its acceptance for three years, he was held not liable. In an able opinion the court sum- marized the law on this subject as follows: " In. cases of a writ- ten guaranty for a debt yet to be created, and uncertain in its amount, the guarantor should have notice in a reasonable time that the guaranty is accepted, and that credit has been given on the faith of it. * The distinction is between an offer to guaranty a debt about to be created, the amount of which the party mak- ing the offer does not know, and it is uncertain whether the offer will be accepted so that he may be ultimately liable, and the case of an absolute guaranty, the terms of which are definite as to its extent and amount. In the latter case, no notice is necessary to ■the guarantor, whereas in the former case the contract is not com- •pleted until the offer is accepted." ' § 160. 'When guarantor entitled to notice of acceptance of ^guaranty — Special cases. — If a promise be made to pay the debt ■of another, provided the creditor will take the debtor's note, pay- .able at a distant day, the promisor must have notice that the proposition is acceded to and the note accepted, or he will not !be liable on his guaranty.' A guaranty was as follows : "F in- forms me that you are about publishing an arithmetic for him. I have no objection to be answerable as far as 501. : for my refer- lence, apply to B." (Signed) G. T. The guaranty was written by B and signed by G. T., and then B wrote at the bottom, ■" "Witness to G. T . B." It was was forwarded by B to the plaintiffs, who never communicated their acceptance of it to G. T. Held, G. T. was not liable. The Court said : " The trans- ■action cannot be tortured into a consummate and perfect con- tract. The contract was not complete till notice; and with re- gai-d to the agency of Brooke (B), there is nothing to show that the plaintiffs might not have been dissatisfied with liis opinion of ■the defendant's solvency. * The subsequent words render the point quite clear that the defendant only intended to be bound hj the instrument in case upon inquiry the plaintiffs should be ■satisfied with regard to his solvency."* A wrote to B that C de- ^ Beebe -v. Dudley, 26 New Hamp. » Patterson v. Reed; 7 "Watts & Serg. 249. (Pa.) 144. = Allen V. Pike, 3 Cush. 238; per «Per Lord Abinger, C. B., md Wilde, J. Parke, B., in Mozley v. Tinkler, 1 WHEN NOTICE OF ACCEPTANCE NECESSAEY. 227 sired the loan of $15,000, and if B would loan it to C he would be responsible for that amount, and would leave as collateral for the loan, a mortgage for $15,000, then in E's hands, and that if B did not feel like loaning the amount he would assist C to get it elsewhere. Held, this was a guaranty, or an offer to guaranty, on the part of A, and in order to render him liable for any ad- vances made, he must have notice of acceptance within a reason- able time. The Court said: "There is a marked difference be- tween an overture, or proposition to guaranty, and a simple con- tract of suretyship. The one is a contingent liability. The oth- er is an actual undertaking." ' A wrote a letter to the plain- tiffs, promising to accept and pay bills to the extent of $50,000, drawn on them by B, of Illinois, and discounted by the plain- tiffs. C, by an indorsement on the letter, guarantied the pay- ment of such bills as might be drawn in pursuance thereof. Bills to the extent of $37,000 were drawn, not paid, and pro- tested. No notice was given to the guarantor of the acceptance of the guaranty, or the advances made thereon, until after the dishonor of the bills. Held, the guarantor was entitled to notice of the acceptance of the guaranty, and of the advances made un- der it, and that he was not liable, for want of such notice.' A party being about to purchase goods, exhibited to the seller a letter from a third party, addressed to the purchaser, containing, among other things, the following: "For the amount of such goods as you wish to purchase^ on six months' credit, not exceeding one thousand dollars, I will guaranty at two and a half per cent." Upon the faith of this he obtained goods, giving therefor his promissory note, payable /in six months, with grace. Held, this was not an authority to the purchaser to bind the writer at all events, nor was the purchaser thereby constituted his agent for the purpose of receiving notice of its acceptance, but that it was a case of collateral guaranty, in which seasonable no- tice of acceptance was necessary to charge the guarantor.' It has been held that in an action for breach of an agreement, which is in the nature of a guaranty, if the circumstances alleged as the foundation of the defendant's liability are more properly within the Cromp. Mees. & Ros. 692; Id. 5 ''Bank of Illinois v. Sloe, 16 La. Tyi-wh. 416; Id. 1 Gale, 11. (Curry) 539. ' Central Savings Bank v. Shine, 48 * Bradley v. Cary, 8 Greenl. (Me.) Mo. 456, per Wagner, J. 234. 228 NOTICE AND DEMAND. knowledge of the plaintiff than the defendant, notice thereof should be averred in the declaration, and proved on the trial.' § 161. When guarantor entitled to notice of acceptance of guaranty — Special cases. — Where a party gave a letter of credit to another, addressed to certain merchants, stating: " Should you he disposed to furnish him with such goods as he may call for, from 300 to 500 dollars' worth, I will hold myself accountable for the payment, should he not pay as you and he shall agree," it was held to be a collateral undertaking, and that the guarantor was entitled to notice of the acceptance of the guaranty and the amount of credit given." "Where an offer of guaranty of rent for a year was made in writing, accompanied by a request in writing for an answer, it was held that the party making the offer must be notified of its acceptance, in order to charge him.' Part of a letter written by A to B, concerning a debt already contracted by third parties, was as follows: "I wish you to show him (James , Hale) some lenity, as much as you think proper for the collection of it from Mr. Lovejoy, and I will, if you please, stand responsi- ble for the payment of it at the time you and James may agree on." Held, this was an offer to guaranty, and not a completed contract; that the writer of the letter was entitled to notice of the acceptance of his offer within a reasonable time, and not hav- ing received any such notice for over two years, he was not bound.' A party addressed to certain merchants a note, stating that he would be responsible at the end of three years for goods sold to F, to the amount of $1,000. The merchants sold F goods on the strength of the guaranty to the amount of about $1,000, but did not notify the writer of the note of the acceptance of the guar- anty, nor of the amount sold, till two years and eight months af- ter the transaction. Held, the writer of the note was not liable. The court said: "Not only is this notice essential to that exact- ness and precision, as well as to the good faith and confidence which should characterize mercantile contracts, but it is equally demanded by a regard to the rights and interests of the defend- ant; and the most unjust results would follow were a contrary ' Lewis V. Bradley, 2 Ired. Law (Nor. * Beekman v. Hale, 17 Johns. 134. Car.) 303. To the effect that when the letter is an " Rapelye v. Bailey, 3 Ct. 438. offer to guaranty, the writer must be ^ Valloton V. Gardner, R. M. Charl- notified of its acceptance; see Fellows ton (Ga.) 86; to similar effect, see v. Prentiss, 8 Denio, 512. Thomas v. Davis, 14 Pick. 353. WHEN NOTICE OF ACCEPTANCE NECESSAET. 229 doctrine to prevail. He ought to have the notice to enable him to take such prudential measures as would guard him against eventual loss; to exercise a watchful supervision over tlie pro- ceedings of him for whom he became responsible; to make pay- ment, if necessary, and to secure himself by suit." ' A letter, after introducing a party, proceeded as follows : " Any favor you may show in introducing him to the different houses, so that he may be able to fill his orders, will be highly appreciated by him, and will be indorsed by me, if necessary, for the amount of his purchases." Goods were sold on this letter, for which the pur- chaser gave his individual note, due in six months. No notice was given the writer of the letter till after the note was due. Held, he was not liable; his agreement being to guaranty if necessary; and he should have been promptly notified of the sale, or requested to guaranty the note." § 162. 'When guarantor entitled to notice of acceptance of guaranty — Special cases. — Where I gave a writing to P provid- ing that he would indorse any bill or bills which S might give to P in part payment of an order for certain goods then executing for him, I to allow 51. per cent, on the amount of the bills for the guaranty; and in part payment for the goods S gave P a bill at eighteen months, which the latter kept for seventeen months and ten dayS, and then finding that S was insolvent, applied for the first time to I for his indorsement, tendering the amount of commission, it was held I was not liable. The writing was a simple ofifer to guaranty upon being paid a consideration. If P intended to accept the offer he should have done so within a reasonable time, and paid the commission.^ A wrote to B recom- mending certain parties and giving certain explanations, and added at the end of his letter: "If in addition to the foregoing explanation you shall require any individual guaranty, I shall have no objection to give you that pledge." Held, the letter was not a guaranty, but a statement that if an application was made, a guaranty would be given, and no guaranty having been re- quired for more than two years, the inference was that the credit was given solely to the principal, and that the offer to guaranty was not accepted.* One H requiring some spirits for the pur- ' Craft V. Isham, 13 Ct. 28, per Bis- ^ Payne v. Ives, 3 Dow. & Ryl. 664. sell, J. " Staiford v. Low, 16 Johns. 67. ' Mayfield v. "Wheeler, 37 Texas, 256. 230 NOTICE AND DEMAND. poses of his trade, received from the defendant, a friend of his, a letter of introduction to the plaintiff, a distiller, to -whom the defendant was well known, but H an entire stranger. There had not been any previous application by H to the plaintiff for credit. The letter was as follows: "The bearer is Mr. Joseph Hugill, a friend of mine, who wishes to purchase some proof spirits, which he hears that you manufacture. If you can ar- range matters to your mutual satisfaction, I am sure that Mr. Hugill will prove a reliable person to deal with. I will myself, with pleasure, become security for anything he may be disposed to give an order for." Held, this was not a guaranty, but an of- fer to guaranty, and in order to charge the writer of the letter it was necessary to notify him of the acceptance of the offer.' A guaranty was as follows: " Wm. Mitchell, Jr.^ will probably call on you to purchase your horse, and should you conclude to sell, you can do so. Take his note, and I will be responsible for the payment on his return." Held, that in order to hold the guar- antor he must be notified of the sale. The court said: "In an ac- tion upon a guaranty, unless the instrument given in evidence as such, purports to be an absolute and conclusive engagement, the plaintiff must show that he gave notice to the defendant that he accepted it as such." " The plaintiff having declined to furnish goods to A's house on his credit alone, a writing was given to A by the defendant to this effect: "I understand A & Co. have given you an order for rigging, &c. I can assure you, from what 1 know of A's honor and probity, you will be perfectly safe in crediting them to that amount; indeed I have no objection to guaranty you against any loss from giving them this credit." This writing was handed over by A to the plaintiffs, together with a guaranty from another house, which they required in ad- dition, and the goods were thereupon furnished, but the defendant . was not notified that they were furnished nor that he was relied upon for payment. Held, the defendant was not liable. The writing was not a perfect and conclusive guaranty, but only a proposition tending to a guaranty.' § 163. When guarantor must be notified of advances made under guaranty. — When the guaranty relates only to a single ' Kastneri). Winstanley, 20 Up. Can. ' Mclver v. Richardson, 1 Maule & C. P. R. 101. Sel.557. '' Smith V. Anthony, 5 Mo. 504. WHEN NOTICE OF ADVANCES WEOESSAET. 231 transaction, notice of its acceptance usually conveys to the guar- antor, knowledge of the extent of his liability; and in such case no other notice is necessary. Where, however, the guaranty is a continuing one, notice of its acceptance does not liave this effect. In such case the same reasons which require notice of the accept- ance of the guaranty, also require notice of the advances made under it. It has accordingly been held, and is well established, that in the case of a continuing guaranty, not only must notice of acceptance be given, but also within a reasonable time after all the transactions are closed, the guarantor must be notified of the amount due under the guaranty.' As to this matter, the follow- ing has been said by an eminent judge: " All such cases must stand upon their own circumstances, and do not seem to furnish just grounds for a general rule." ^ A notice of the amount due after all the transactions are closed, is sufBcient, and it is not necessary to give notice of each successive sale as it is made.' The maker of a continuing guaranty was duly notified of its ac- ceptance. Goods were sold under it, but no notice of the amount so sold, nor of default in payment by the principal was given till two years after the close of the transaction, when the principal had become insolvent: Held, the guarantor was not liable. The court said: " Good faith, we think, requires that when a party gives credit to another on the responsibility or undertaking of a third person, he should give immediate notice to the latter of the extent of the credit, especially when, as in the case under consid- eration, a continuing guaranty is given without limitation of the time of its continuance, or of the amount of credit for which the guarantor might be held responsible."* A, B and C were in partnership. D gave A and B a guaranty to be responsible for one-half of any loss which they might suffer in the business with C. The partnership having been dissolved, it was held that D was not liable on his guaranty, unless he had been notified with- in a reasonable time after the dissolution of the partnership, of ' 1 Dougrlass V. Eeynolds, 7 Peters, cook r. Bryant, 12 Pict. 133; Tlioinas 113; Montgomery v. Kellogg, 43 Miss. v. Davis, 14 Pick. 353. 486; Howe v. Nickels, 22 Me. 175; 'Wildest. Savage, 1 Story, 22, per Wildes V. Savage, 1 Story, 22; Ore- Story, J. mert). Higginson, 1 Mason, 323; Nor- 'Lowe v. Beckwitli, 14 B.Monroe, ton D. Eastman, 4 Greenl. (Me.) 521; (Ky.) 150. Killian K. AsMey, 24 Ark. 511; Bab- * Clark v. Remington, 11 Met. (Mass.) 361, per Wnde, J. 232 NOTICE AND DEMAND. any loss within the scope of his undertaking. The guaranty was for an uncertain sum, and its duration was not fixed, and there- fore the amount to be paid, and when it was due, could only be ascertained by winding up the concern, which was a matter over which the guarantor had no control, and he was consequently en- titled to notice.' § 164. When guarantor of definite liability of another not en- titled to notice of acceptance of guaranty. — ^When one directly binds himself to be responsible for another's contract already made, and of which he has knowledge when he signs, no notice of the acceptance of the guaranty is necessary. This principle has been applied to a case where a party guarantied the payment for sewing machines to be furnished another under an existing contract of which he knew, and it was held that no notice of ac- ceptance was necessary to charge the guarantor.'' The same thing was held where the guaranty of a lease was made at the same time the lease was executed, and was a part of the consideration for the execution of the lease.'' Where a party guarantied the payment of a particular sum at a given time, the court held that no notice to him was necessary,, and said: "It is not an indefinite promise, either as to amount or time of performance. The party knew what he had contracted to pay, and when it was to be paid, and it was his business to see that the amount was paid." * A party exe- cuted a guaranty on the back of a note in the following words : " I hereby guaranty the payment of this note within four years from this date." Held, the guaranty was absolute that the note should be paid within four years, " and demand and notice were not necessary in this any more than in all other cases of absolute and unconditional engagements." " A having bought a cow at an administrator's sale, and the administrator having refused to de- liver her on A's credit alone, A gave his note for the price and B wrote to the administrator as follows: " I, the undersigned, will sign the note with * (A) for the cow bought of the Wilkerson estate." Held, a completed guaranty, and that no notice of ac- ceptance was necessary to charge B. The court said: "There is ' Courtis V. Dennis, 7 Met. (Mass.) ^ Mathews v. Chrisman, 12 Smedes 510. & Mar. (Miss.) 595, per Sharkey, C. J. ''Davis Sewing Machine Co. V.Jones, 'Breed v. Hillhouse, 7 Ct. 523, per 61 Mo. 409. Hosmer, C. J.; See also Studebaker v. •Mitchell V. McCleary, 42 Md. 374. Cody, 54 Ind. 586. WHEN NOTICE OF ACCEPTANCE NOT NECESSAET. 233 a well recognized distiuction between an offer or proposition to guaranty and a direct promise of guaranty. The former re- quires notice of acceptance and acting upon it, while the latter does not." ' A, who was digging ore for B under a parol contract to dig it as fast as B wanted it, refused to proceed with the work unless B would give him a guaranty for the fulfillment of the contract on his part. The contract was thereupon reduced to writing and signed by B, who procured to put on it his guaranty of the same date, as follows: " We agree to warrant the perform- ance of the within and above contract on the part of said B." Held, no notice of the acceptance of this guaranty was necessary in order to charge C. The contract and guaranty having both been signed at the same time, were part of the same transaction. The delivery of the guaranty was not an incipient step in the making of the contract, but was the completion of the contract, and no notice could make it more complete.^ A party desiring to pur- chase carpets, proposed to the seller that he would get a certain person to guaranty notes for the purchase money, which proposi- tion was satisfactory to the seller. The person referred to wrote in a postscript to a letter of the purchaser, that he would guaranty the payment of the notes. The seller then shipped the carpets, and the purchaser signed the notes, but when they were presented to the party who agreed to guaranty them, he evaded doing so. It was held, that having agreed to guaranty a specific bill, no notice to him of the acceptance of the guaranty was necessary. " The moment he wrote that acceptance of Orne's offer, the bargain was complete. He then knew the goods were to be furnished ^ipon his credit. He knew his guaranty was already accepted, and that he would be responsible for the goods, if furnished before the guaranty was withdrawn, and within a reasonable time; any further notice of the acceptance of the guaranty would have been superfluous." " § 165. When guarantor not entitled to notice of acceptance of guaranty — Special cases. — Certain stockholders of a company, by an instrument under their hands and seals, guarantied the pay- ment of all the debts of the company then outstanding, and bound themselves to pay all of said debts to the " creditors of ' Carman v. EUedge, 40 Iowa, 409, ' Coolce v. Ome, 37 111. 186, per Law- perCole, J. rence, J. 'Bushnell v. Church, 15 Ct. 406. 234 NOTroE AWD demand. tlie company who will not sue, but indulge the company upon their claims for ten months from this time." Held, that a credi- tor of the company at that time, who indulged it ten months, was entitled to recover the amount of his debt against the com- pany from said stockholders, without having notified them that he would so indulge it. The instrument signed by the stockholders was an absolute present guaranty, and not an offer to guaranty.' The following instrument, viz: "Mr. J. C, I will guaranty the payment to you of $625.00 in treasiiry warrants, to be paid on or before the 20th of August, on and for account of Mr. J. "W., July 13th, 1844," was held not to be a guaranty in the legal sense of the term, but an original undertaking to pay J. C. the money specified at the appointed time, and no notice of any kind was necessary to charge the maker of the instrument." A guaranty was as follows : " If D. A. Wills purchases a case of tobacco on credit, I agree to see the same paid for in four months." When Wills returned from market, he showed the guarantor a bill for a case of tobacco, saying he had bought it and paid for it with his note. The court held the guaranty was absolute, and notice of acceptance was not necessary to charge the guarantor. The only condition was that the goods should be furnished, and that was done. When Wills told the guarantor he had bought a case of. tobacco, he should have inquired and ascertained the facts.' A agreed to furnish B with books for sale, at a certain price, upon condition that B should get a good guarantor to the contract. Upon the back of the contract was written as follows: "We guaranty to * (A) that the above named .* (B) will well and truly perform all his above and foregoing undertakings, pur- suant to the tenor and effect of said contract." C signed this guaranty, and B delivered it to A. Books were delivered accord- ing to the contract, but was not notified of the acceptance of the guaranty. Held, he was liable for the price of the books. The court said: " An absolute present guaranty complete in its terms and fijcing the liability of the guarantor, takes effect as soon as acted upon."* A guaranty was as follows: "Mr. A. Ferm tells me that he is about to loan from you five hundred dollars, and wishes me to state that I will become his event- ' Sanders v. Etcherson, 86 Ga. 404. 'Case v. Howard, 41 Iowa, 479. ' Mathews ». Chrisman, 12 Smedes * Bright v. MoKnight, 1 Sneed, & Mar. (Miss.) 595. (Term.) 158. WHEN KOTIOE OF ADVAJifOES NOT NECESSAET. 235 ual security for the payment; this I am willing to do, as I have found him punctual on similar occasions. " Three hundred dollars were loaned on the faith of the guaranty: Held, no notice of the acceptance of the guaranty was necessary to charge the guarantor. "The substance of the letter is this: ' I will become his eventual security for payment.' Here is, then, no conditional agreement, but a conclusive undertaking." ' A guaranty requested the delivery of goods to a purchaser, and promised to pay for them if the purchaser made default, and con- cluded as follows: " Of which default you are required to give us reasonable and proper notice:" Held, no notice of the acceptance of the guaranty need be given the guarantor to charge him. He had stipulated for a certain kind of notice, viz.: notice of the default of his principal, and,, therefore, no other notice was re- quired.' In the greater portion of the foregoing eases, holding notice of acceptance not necessary to charge the guarantor, as in many of the cases holding such notice necessary, the distinction is drawn between an absolute guaranty and an offer to guaranty. There is no conflict in principle between those cases, but in the application of the principle to special circumstances, there is not entire harmony in the decisions. § 166. When guarantor not entitled to notice of advances made to principal. — Upon the same general principles, where the guaranty is a completed undertaking to be responsible for the ex- isting contract of another, of which the guarantor has knowledge, it has been held that no notice of advances to the principal is necessary to charge the guarantor.' A and B agreed to buy of C his crop of strawberries for the year, and to pay therefor on de- livery. D added to the agreement this clause: " On the part of the said Dillons (A and B) I hold myself with them responsible for their part of the above contract." delivered the berries to A and B, as they ripened, without being paid for them on deliv- ery, or afterwards. D had no notice of the failure of A and B to pay, till suit was brought against him, three months after the delivery of the berries. It was held that D, by signing the con- tract, became directly and not collaterally liable, and it was his duty, without notice, to see that the contract was performed. De- ^ Caton V. Shaw, 2 Harris & Gill. ' Wadsworth v. Allen, 8 Gratt. (Va.) (Md.) 13. 174. » BushneU v. Cliurcli, 15 Conn. 406. 236 NOTICE AND DEMAND. livering tlie berries without getting pay for them as delivered, did not change the contract.' A, who was cultivating a large number of trees on his land, agreed in writing with B to culti- vate them there till September 13th, and at that time to deliver to B, at the place of their growth, 15,000 trees, to be designated and counted by the parties. It was stipulated that if either par- ty failed to perform his contract he should forfeit $3,000. Un- derneath was written as follows: " In case B, one of the parties named in the foregoing instrument, should incur the forfeiture mentioned therein, we hereby guaranty the payment of the same;" which was signed by C, as guarantor. A cultivated the trees as agreed, and was always ready to perform, but B failed of per- formance on his part. Held, that was liable, and no notice of B's default need be given to fix his liability. The court said: " E^one is bound to give notice to another of that which that oth- er person may otherwise inform himself of. ISTor is notice neces- sary where the thing lies as much in the cognizance of the one as of the other. * In the present case * (0) was privy to the contract made by * (B); he, as well as * (A), knew its terms and its time of performance, and by an inquiry could have ascertained whether a forfeiture against which he had himself stipulated had occurred." " A party gave an agreement to pay his instalments on shares in an insurance company, and an- other party guarantied the performance of the agreement. Held, that although the amount which was to become due on the agreement was uncertain when it was made, yet notice of that amount was not necessary to be given the guarantor, as he him- self should have taken notice of the amount. The court said that where the unascertained liability existed on the face of the original contract, it was the duty of the guarantor to see that the principal performed his contract.' A bond, signed by a principal and two sureties, stated that the principal re- quired money to carry on his business, and required ad- vances from the bank, and " in case of his failure to pay any such loans and advances as aforesaid," the same might be collected from the signers. The bank advanced money to the principal, but did not notify the sureties of the same. Held, no ' Kirby v. Studebaker, 15 Ind. 45. ' Protection Ins. Co. v. Davis, 5 Al- * Hammond v. GUmore's Admr. 14 len, 54. Ct. 479, per Church, J. NOTICE OF ACCEPTANCE OF GUAEANTY. 237 sucli notice was necessary to charge the sureties. They were joint original promisors who were directly liable, and not guar- antors who were collaterally liable." A executed a writing whereby he agreed with B that he would at all times hold himself responsible to B to the amount of $20,000, without no- tice to be given to him by B. This writing was simultaneously delivered by A and accepted by B, and B on the credit thereof discounted paper indorsed by 0. Held, that no notice of the acceptance of the guaranty or the amount advanced under it was necessary to charge A. The court said this was not such a case as that of a letter of credit. A letter of credit is a mere propo- sition and until it is accepted, and notice of that fact given, the minds of the parties have not met and there is no contract. " Its reception is unavoidable, its acceptance as a promise optional; its delivery is with a view to its acceptance, and must therefore necessarily precede it. Until such acceptance it is not consum- mated into a contract, but remains a mere proposition, and there has been no meeting of the minds of the parties." But in this case the delivery of the instrument " was not an incipient step in the formation of the contract, but the result of previous negotia- tion and agreement, and constituted the very consummation of the contract." ^ § 167. Cases holding guarantor for indefinite amount on credit to be given, not entitled to notice of acceptance of guaranty. — There is a class of cases which hold that where the guaranty relates to advances to be made, and the party to make them, as well as the amount to be advanced, are not ascertained, the guarantor is liable without notice of the acceptance of the guaranty, or of the amount advanced. These decisions, while they are the law where they were rendered, are opposed to the great weight of authority, and seem to be founded on much less satisfactory reasons than the cases holding the opposite view. But even here the conflict is more in the application of principles to special facts than in principles themselves. All courts recognize the principle that it is necessary to the completion of a contract that the minds of both contracting parties shall meet; the conflict is as to when they have met. They all hold that a mere offer to guaranty, the same as any dther ofier, is not binding unless ' McMillan v. Bull's Head Bank. 32 " New Haven Co. Bank v. Mitchell, Ind. 11. 15 Ct. 206, per Storrs, J. 238 NOTICE AND DEMAND. accepted; the conflict is as to whether the guarantor must be notified of the acceptance of the guaranty, and whether the writing amounts to an offer to guaranty or to a completed guaranty. A guaranty addressed to a mercantile firm in these words, " We consider Mr. J. good for all he may want of you, and will in- demnify the same," was held to be a completed guaranty of the acceptance of which it was not necessary to notify the guarantor. The Court said: "Unless there is something in the nature of the contract or terms of the writing, creating or implying the neces- sity of acceptance or notice, as a condition of liability, neither are deemed requisite. * The party entering into an abso- lute engagement for the responsibility of his friend, should see to the performance of it. The relation in which the parties afterwards stand to each other presupposes privity and knowledge of the credit obtained.'" A letter of guaranty •was as follows : "If you will let A have one hundred dollars worth of goods, on a credit of three mdnths, you may regard me as guarantying the same." Held, the guarantor was liable with- out any notice of the acceptance of the guaranty. " Here the undertaking was absolute. The defendant said to the plaintiff, in substance : ' If you will deliver the goods I will guaranty the payment.' "We cannot add a condition that the defendant shall have notice. He should have provided for that himself in the proposal made to the plaintiff. I know there are cases which re- quire notice, but we think they are not based on the common law, and for that reason they have not been followed in this state." ' Where A, by a general letter of credit, undertook to accept and pay drafts to be drawn by B, to a given amount, and C, at the foot of the letter, at the same time, wrote and signed these words : " I hereby agree to guaranty the due acceptance and payment, of any draft or drafts issued in virtue of the above credit," it was held that C was liable to the party advancing money on the guaranty, without any notice o£its acceptance.' A guaranty ad- dressed to a merchant, after explaining who the bearer was, went '■ Whitney v. Groot, 24 Wend. 82, Bank, 18 Ohio, 126 ; Powers v. Bum- per Nelson, C. J. cratz, 12 Ohio St. 273; overruling Taylor « Smith v. Dann, 6 Hill 543, per ». Wetmore, 10 Ohio 491 ; in Clarke. Bronson, J. Burdetfc, 2 Hall (N. Y.) 217, this prin- ' Union Bank v. Coster's Exr. , 3 New ciple was applied to the case of a con- York 203 ; following and approving tinuing guaranty, these cases, see Lonsdale v. Lafayette WHEN NOTICE OF DEFAULT NECES8AET. 239 on, " 1 want jou to sell him a bill of goods on the best terms you can afford ; I will guaranty the payment of every dollar." Held, no notice of the acceptance of the guaranty, or the default of the principal was necessary to charge the guarantor.* Where the agreement to accept a letter of credit on the part of the person to whom it is addressed, is contemporaneous with the writing of the letter, and is known to the writer, there no other notice of accept- ance of guaranty is necessary to charge him.^ § 168. When guarantor entitled to notice of default of prin- cipal. — Whether demand of payment must be made of the prin- cipal, and notice of his default be given, in order to charge the guarantor, is a question depending very much upon the nature of the particular guaranty. Where the liability of the guarantor is not direct, but is collateral and dependent upon the default of another, notice of such default to such guarantor, within a rea- sonable time, has been held necessary, where a guaranty of a note was as follows : " I guaranty the payment of the within note to * (A), for value received:'" Where a debtor transferred to his creditor certain notes of third persons in payment of his own debt, and promised, if the creditor could not collect the notes, he would pay them:* And where an instrument was as follows: "I have this day sold to Kannon a note on Wortham for four hun- dred and twelve dollars, which I guaranty to said Kannon, waiv- ing all exception of my not assigning said claim, and holding myself bound for the same for value." ' So, where the holder of a promissory note failed to give the guarantor of the same notice of its non-payment for nine months after it's dis- honor, and the maker was solvent when the note became due, but afterwards became insolvent, it was held, the guarantor was discharged. The court said : " It is clearly conformable to the general principles of right and justice that the creditor, who knows of the delinquency of his debtor, and withholds in- formation of it from the guarantee, by reason of which the debt ' Yancey v. Brown, 3 Sneed (Tenn.) Ringgold v. Newkirk, 3 Ark. (Pike) 89. 96; Foote v. Brown, 2 McLean, 396; ' Wildes V. Savage, 1 Story 22. To Gamage v. Hutchins, 23 Me. 565. similar effect, see Paige v. Parker, 8 *'Adcock ». Fleming, 2 Dev. & Bat. Gray, 211. Law (Nor. Car.) 225. 'Cox ». Brown, 6 Jones Law (Nor. ' Kannon d. Neely, 10 Hump. (Tenn.) Car.) 100. To same effect, see Grice v. 288. To similar effect, see Saige v. Ricks, 3 Dev. Law (Nor. Car.) 62; Wilcox, 6 Ct. 81. 240 NOTICE AND DEMAND. is actually lost when it might have been saved by either, should not throw the loss upon the guarantee." ' The payee of a note sold it, and indorsed a guaranty of its payment upon it. No de- mand was made on the maker of the note, and he remained sol- vent for six months after it became due, and afterwards became insolvent. Two years after the note became due, notice of non- payment was given the guarantor, and demand of payment made on him. Pleld, he was not liable. The court said: "The under- taking of the' guarantor of a promissory note is conditional, and he will be discharged by the neglect of the holder to demand payment of the maker, and give the guarantor notice of the non- payment, provided the maker was solvent when the note fell due, and afterwards became insolvent." " A party guarantied the punc- tual payment of two accepted bills. "When the bills became due the acceptors were solvent, and so continued for four months, and then became insolvent, '^o notice was given to the guarantor within the next four years. Held, he was discharged. The court said: "In the case before us, the guaranty was that the accept- ances should be promptly met by the acceptors. An agreement in such ease to pay at all events, without reference to, or reliance upon the acceptors, could not be inferred. His warranty was that the acceptors would pay as they were bound to do, and not that he himself would pay without regard to whether they did so or not." ' Where certain parties guarantied the performance of a contract for the purchase of a lot of cattle, and the payment therefor, and for eighteen months after the maturity of the con- tract, the principal was solvent, but afterwards became insolvent, and no notice of his default was given the guarantors, it was held they were discharged.' A guarantor of a promissory note, pay- able on demand, is discharged from his contract of guaranty, by the omission of the holder to give him notice within a reasonable time of demand on the maker, and non-payment by him, pro- vided the maker was solvent when the guaranty was made, and became insolvent before notice of non-payment was given.^ In > Oxford Bank v. Haynes, 8 Pick. 423, ' Globe Bank v. Small, 25 Me. 868, per Parker, C. J. per Whitman, C. J. 'Talbot V. Gay, 18 Pick. 534, per *Gaff v. Sims, 45 Ind. 262. Wilde, J. Generally as to when guar- 'Whiton ». Mears 11 Met. (Mass.,) antor is entitled to notice of principal's 568; to similar eifeot, see Nelson v. default, see Lowe v. Beckwith, 14 B. Bostwick, 5 Hill, 37; Douglass v. Eath- Mon. (Ky.) 150. bone, 5 ffill, 143. DEMAND OF PAYMENT AND NOTICE OF DEFAULT. 241 cases where Botice of the principal's default is necessary to charge the guarantor, the same strictness is not required as in the case of indorsers. The notice need not be given immediately upon tlie principal's default. If it is given within a reasonble time, that is sufficient.^ § 169. When demand of payment on principal and notice of his default necessary to charge guarantor. — When the advances are made to the principal on a letter of credit, signed by the guarantor, the weight of authority is that demand of payment must be made on the principal, and notice of his default be given the guarantor within a reasonable time, in order to charge him, unless the principal be insolvent when the debt becomes due.' The law upon this subject, and the reasons upon which is founded, have been thus stated: "A demand upon him (the principal), and the failure on his part to perform his engage- ments, are indispensable to constitute a casus foederis. The creditors are not indeed bound to institute any legal proceedings against the debtor, but they are required to use reasonable dili- gence to make demand, and to give notice of the non-payment. The guarantors are not to be held to any length of indulgence of credit which the creditors may choose, but have a right to insist that the risk of their responsibility shall be fixed and terminated within a reasonable time after the debt has become due." " Where 0, by an instrument under seal, assigned certain contracts for the payment of money, and covenanted that the sum set opposite each contract, in a schedule annexed to the assignment, was due and would be paid, it was held that O being a guarantor of the amount due on the contracts, in order to maintain a suit against him, it was necessary to aver a previous demand of pay- ment from the persons bound by the contracts. The contracts having been assigned to the plaintiff, they alone could demand and receive payment, and they must make such demand before coming upon the guarantor.' Certain parties entered into a 'Bulls. Bliss, 30 Vt. 127; Dunbar ». v. Bainbridge, 6 Blaclrf. (Ind.) 12. a Brown, 4 McLean, 166; Talbot v. Gay, delay of eighteen months in notifying 18 Pick. 534, and many of the cases the guarantor was held to be unreason- cited in this chapter to other points. able, and to discharge the guarantor. ^ Per Story, J. in Douglass v. Rey- ^ Mechanics Fire Ins. Co. v. Ogden, nolds, 7 Peters, 113. See, also, McCol- 1 Wend. 137; contra, Barker v. Scud- lumt). Uushing, 22 Ark. 540. In Smith der, 56 Mo. 272. 16 242 NOTICE AND DEMAND. guaranty, in part, as follows: "We her sbj engage to see yon paid, in due course, for the bill of goods bought by Mr. Eoss from you on the 27th inst." A particular bill of goods which had been previously bargained for were delivered on the strength of the guaranty. Held, ths,t this was not an original undertak- ing, but an undertaking to pay if Eoss did not, and that the guarantors were entitled to pi-orapt notice of his default unless he was insolvent.^ Where a guaranty provided that when a note became due, it should be good and collectible, it was held that it did not bind the guarantor unless diligence was used to collect the note, and tlie guarantor was notified that it could not be col- lected. The Court said that, if a party stipulates to do a thing himself, or that another shall do it, he must take notice whether or not it is done. But when he stipulates that the party he con- tracts with can, by his diligence, do a certain thing, the case is different. " He is not then supposed to know, nor does he assume to know the means taken, or the result. Ifotice is, therefore, required, for the reason assigned by Judge Swift, that it would be against principle to admit a man to be sued when he has no • knowledge of the existence of the demand." ' A and B each owned an interest in the same land. A transferred his interest to B, and guarantied that if the title proved defective the grantor of the two would recompense B for the loss of the title. Held, that demand on the grantor by B, and notice of his default to A, were necessary before bringing suit against A on the guaranty. Whether A had to pay at all depended upon a contingency, and in order to put him in default it was necessary to demand pay- ment from the grantor, and notify A of his default.' § 170. 'When demand of payment on principal and notice of his default to guarantor not necessary to charge guarantor — Guaranty of promissory note, etc. — Where the contract of guar- anty absolutely and unconditionally provides that the debtor shall pay a given sum at a stated time, no demand of payment on the principal or notice of his default is necessary before suing the guarantor.* This principle has been very generally applied to 'Mayberry v. Bainton, 2 Harring- 'Morris v. Wadsworth, 17 Wend, ton (Del.) 24. 103. '' Sylvester v. Downer, 18 Vt. 32, per *Mann v. Eckfords' Exrs. 15 Wend. Royce J. As to the notice necessary 502; Peck v. Barney, 13 Vt. 93; East to charge a guarantor of collection, see River Bank v. Rogers, 7 Bosw. (N. Y.) Braokett v. Rich, 23 Minn. 485. 493; March v. Putney, 56 New Hamp. WHEN DEMAND AND NOTICE NOT NECE8SAET. 243 guaranties of promissory notes.' "Where a party guarantied the payment of a note if it should not be " duly honored and paid " by the maker, according to its tenor and effect, it was held he was liable on his guaranty if the note was not paid by the maker, even though no demand of payment was made on the maker be- fore suit was brought against him. The court said: " Now it is clear that a request for the payment of a debt is quite immaterial unless the parties to the contract have stipulated that it shall be made; if they have not, the law requires no notice or request, but the debtor is bound to find out the creditor and pay him the debt when due.'"' The payees of a note indorsed it as follows: "For value received we guaranty the payment of the within note at maturity." Held, " as between them (the guarantors) and the maker of the note, the holder was under no obligation to demand payment of the maker, and on his default to notify the guarantors, for they undertook to pay at all hazards at maturity, the one being as much bound as the other. * Their duty was, and of each of them, on its maturity to go to the holder and take it up. The holder was under no legal or moral obligation to hunt them and make a demand." ' The same thing was held where the guaranty of a note was as follows: " I guaranty the said note is good, and the payment of the same:" * Where the payee of a note indorsed it as follows: "I do assign the within note to * (A) for value re- ceived, and guaranty the punctual payment of the same at maturi- ty :" ' Where the payee of a non-negotiable note indorsed it as fol- lows : " I guaranty the within at maturity :" ^ When a guaranty was in these words : " On the 25th December, 1824,we bind ourselves to see the within note paid :" ' Where a party wrote on the back of a note, " I hereby guaranty the payment of balance due on note * within sixty days from the second day of May, 1843, balance 34; Bank v. Hammond, 1 Rich. Law '' "Walton v. Mascall, 13 Mees. & (So. Car.) 281; Eneas v. Hoops, 10 Wels. 452, per Parke, B. Jones & Span. (N. T.) 517. ' Gage v. Mechanics National Bank 'Forest v. Stewart, 14 Ohio St. 246; of Chicago, 79 111. 62, per Breese, J. Williams v. Granger, 4 Day (Conn.) * Woodstock Bank v. Downer, 27 444; MaUory v. Lyman, 3 Pinney Vt. 589. (Wis.) 443; Ten Eyck v. Brown, 3 ' Thrasher i>. Ely, 2 Smedes & Marsh. Pinney (Wis.) 452; Clark v. Merriam, (Miss,) 139. 25 Ct. 576; Levi v. Mendell, 1 Duvall, « Peck v. Prink, 10 Iowa, 193. (Ky.) 77; see, also, Gammell v. Parra- 'Taylor v.. Ross. 8 Terg. (Tenn.) more, 58 Ga. 54. 330. 244 NOTICE AND DEMAND. due this day, $292.22:"^ And where a guaranty on the back of a note was as follows: "I guaranty the payment of the within note to C. Edgerton or order.'"" In the case last referred to, the court said: "Where the guaranty of payment is absolute and uncon- ditional, we are of opinion that it is not necessary, in order to make out a prima facie case for recov^ery, to aver or prove either de- mand or notice." Moss obligated himself to deliver on a given day, and at a specified place, seventy bushels of salt to Hunter. Hunter transferred this obligation by assignment, and guarantied the payment of the salt as follows: " For value received I assign the within note to * (A) and guaranty the payment of the same." Held, this was an absolute engagement to deliver the salt at the time and place specified, if the maker did not, and de- mand on the maker and notice to the guarantor were not neces- sary to charge the guarantor.^ A memorandum at the foot of a promissory note in these words: "I hereby obligate myself that the above note shall be paid in three years from this ith day of June, 1838," made in consideration that the payee should delay payment until two years after the maturity of the note, was held to be an original undertaking, which did not require that demand of payment should be made of the maker and notice of his de- fault be given in order to charge the guarantor.* § 171. When guarantor bound without notice of default of principal — Other cases. — The Same principle has been applied and notice to the guarantor of the principal's default held not to be necessary in a variety of other cases. Thus, where A agreed to account with B and pay over to him such sum as he should be found to be indebted, and covenanted that A should perform the agreement, it was held that an action lay against C by B, for the default of A, without previously giving B notice of such de- fault.° A contract provided for the return of certain shares of rail- road stock which were loaned, and for the payment of interest for their use. At the same time the contract was executed, certain parties guarantied it as follows: "We, the undersigned, guaran- ty the fulfillment of the above obligation and hereby promise 1 Cooper V. Page, 24 Me. 73. « Douglas v. Howland, 24 "Wend. 35, " Clay V. Edgerton, 19 Ohio St. 649. in which Mr. Justice Cowen delivered per BrinkerhofF, C. J. an elaborate opinion repudiating the ' Hunter v. Dickinson, 10 Humph. entire doctrine that notice of accept- (Tenn.) 37. ance of a guaranty is necessary to < Reed v. Evans, 17 Ohio, 128. chargethe ^arantor. WHEN DEMAND AND NOTICE NOT NECESSARY. 245 said Hiram Simons that said stock shall be returned at the time specified, agreeable to the above contract." Held, no demand on the principal oe notice of defaiilt on his part was necessary to charge the guarantors.' .A and B being partners, dissolved their partnership, and A agreed to pay the partnership debts, and gave B bond with C as surety, that he would do so. Held, that no notice of A's default in paying the partnership debts was neces- sary to be given C before B could sue him. Tlie court said: " It is a general rule that where one guaranties the act of another his liability is commensurate with that of his principal and he is no more entitled to notice of the default than the latter. Both must take notice of the whole at their peril." ° Where a guaranty stated that if the principal did not pay the creditor a certain sum "in, three months from this time," the guarantor agreed "to guaranty to said Dickerson the payment of said sum of money." It was held that no notice of the non-payment by the principal was necessary to charge the guarantor.^ A guaranty stated that if certain merchants would furnish a purchaser goods, the guar- antor would " be accountable to you for all his contracts or en- gagements, as you and he may agree, and in case he does not ful- fill them as agreed, I will guaranty the payment thereof." Goods were sold and the guarantor notified thereof. Held, it was not necessary in order to charge him that payment should first be demanded of the principal and notice of his default be given.* In April, 1825, the defendant guarantied the payment of money due from his son to the plaintiif upon a sale of timber. The plaintiff received part payment from the son, and made repeated unsuccessful applications to him for the residue till December, 1827, when he became bankrupt. The plaintiff never disclosed to the defendant the result of these applications, but on Decem- ber 27th, 1827, sued him on his guaranty. Held, the guarantor was liable, on the ground that mere passlive delay on the part of the creditor will not discharge the surety.' § 172. When no notice of default in payment by principal need be given guarantor of over-due debt, of lease, and of negotiable instrument by separate contract. — The rule that no. notice of the ' Simon V. Steele, 36 New Hamp. 73. ■* Noyes v. Nichols, 28 Vt. 159. ' Gage V. Lewis, 68 111. 604, per ' Goring v. Edmonds, 6 Bing. 94; Sheldon, J. Id. 3 Moore & Payne, 259. ' Dickerson v. Derrickson, 89 111. 574. 246 NOTICE AND DEMAND. principal's default need be given in order to charge the uncondi- tional guarantor of an existing demand,' is specially applicable to a guaranty of a debt made after tlie debt is due. In such case, the principal is in default when the guaranty is made, and the reasons requiring notice do not apply. Thus H was indebted to K in a certain sum then due and payable, and C, in consideration of an indemnity given by H, and of R's engagement not to sue H for twelve months, promised to pay K the debt at that time, unless the same should have been paid by H. Held, this was an original and absolute undertaking, and no demand on H, or no- tice of his default was necessary in order to charge 0.' The same thing has been held in the case of a guaranty of an over- due promissory note, when the guaranty on the back of the note was: " I assign the within note to * (A), and guaranty the pay- ment thereof, for value received :" " When a stranger to a note wrote on it, after it was due, " I hereby guarantee the payment of the within note, ninety days from the date of this guaranty:"^ And when the payee of an overdue note indorsed it as follows, " I assign the within note to * (A), for value received, and guar- anty its prompt and full payment."* It is not usually- neces- sary, in order to charge the guarantor of rent to come due under a lease, that demand should be made on the principal, and the guarantor be notified of his default. Thus a party, by a writing on the back of a lease running five years, bound himself to pay the lessors "all rents, and damages of every kind they may sus- tain, by reason of the non-compliance or fulfillment of the stipu- lations of the within lease by said" lessee. The lessee occupied the premises about half the term, and then left them. About three years after he left, the lessors demanded the rent of the guarantor, and brought suit on the guaranty, but they had before given the guarantor no notice of the default of the lessee. Held, the guaranty was an absolute undertaking, and the guarantor was liable.' In an action against the guarantor of rent already due, ■ ReacU. Cutts, 7 Greenl. (Me.) 186. »Voltz v. Harris, 40 lU. 155; ex- ^ Foster v. ToUeson, 13 Rich. Law & plainiug and modifying, White v. Eq. (So. Car.) 31; contra, Benton v. Walker, 31 111 422. To same effect, Gibson, 1 Hill (So. Car.) 56. see Ducker v. Rapp, 9 Jones & Spen- 'Sabin v. Harris, 12 Iowa, 87. cer (N.T.) 235; Tarnure». Hohenthal, »* Wright V. Dyer. 48 Mo. 525; to 4 Jones & Spencer (N.Y.) 79; contra, same effect, see Lane v. Levillian, 4 > Virden v. Ellsworth, 15 Ind. 144. Ark. (Pike), 76. WHEN NOTICE OF DEFAULT NOT NECESSAEY. 247 and to become due for a certain time, from a tenant at will, it has been held that it is not necessary to prove a demand of pay- ment on the tenant, and notice of the non-payment to the guar- antor, unless the terms of the guaranty, or the nature and cir- cumstances of the particular case require it. The court in an able oi:iinion, which presents a clear view of the law on this point, said: "The subject of the guaranty was the payment of certain sums at certain times, both absolute, and fixed by the terms of the guaranty itself It required no act of the plaintiif to pre- cede the performance by Bailey (principal), except the permission for Bailey to remain, which the defendant knew had been given. If Bailey made a corresponding agreement to do what the de fendant agreed he should do, it was broken by the mere fact of non-payment, without demand upon him. The same fact was of itself a breach of the defendant's contract of guaranty. A for- mal demand upon Bailey is not necessary to make his failure to pay the rent a breach of his obligation, and the defendant's con- tract is simply that Bailey shall perform his agreement. But whether Bailey made such a corresponding agreement or not, the defendant, by his guaranty, undertook that Bailey should perform certain specific acts, and he is liable on his agreement for Bailey's failure to do those acts. * In a suit against a guarantor it is undoubtedly necessary to allege and prove a breach of the con- tract of guaranty, but it is only necessary to show such acts as would constitute a breach of the partiieular contract in suit. If the guaranty be for the performance of a specific act of another, and be absolute in terms, whatever is sufficient to show default in that other person, will ordinarily show a breach of the contract of guaranty, and a right of action upon it." ^ One who is not a party to a negotiable instrument, but guaranties its payment by a separate contract, is not discharged by want of demand on the principal and notice of dishonor to the guarantor, unless the guarantor is injured thereby." § 173. If principal be insolvent when debt becomes due, no 'Vinali;. Richardson, 13 Allen, 521; v. WilMns, 1 Bam. & Cress. 10; Id. disapproving, Ilsley v. Jones, 12 Gray, 2 Dow. & Ry. 59; Reynolds v. Doug- 260. lass, 12 Peters, 497; Rhett v. Poe, 2 '^ Hitchcock V. Humfrey, 5 Man. & How. (U. S.) 457; Walton v. Mascall, Gr. 559; Id. 6 Scott (N. R.) 540; Lew- 13 Mees. &Wels. 72; Gasquet w.Thorn, is V. Brewster, 2 McLean, 21; Hank v. 14 La. (Curry) 506; contra, Philips v. Crittenden, 2 McLean, 557; Holbrow Asthng, 2 Taunt. 206. 248 KOTICE AND DEMAND. demand on him, nor notice of his default to guarantor necessary. — If the principal debtor be insolvent when the debt becomes due, and afterwards so remain, no demand need be made on him, or notice of his default be given the guarantor, in most cases, where it would otherwise be necessary, unless some loss or damage can be shown to have occurred to the guarantor in consequence; and he will only be discharged to the extent that he is injured.'' De- lay and damage must both concur to discharged the guarantor. ' In this respect a gaurantor differs from- an endorser of a negotia- ble instrument, for while an indorser must be at once notified, independent of all considerations, it is otherwise with a guarantor. ' "With reference to this subject, it has been said that guarantors "insure, as it were, the solvencyof their principals, and, therefore, if the latter become bankrupt and notoriously insolvent, it is the same thing as if they were dead, and it is nugatory to go through the ceremony of making a demand upon them." * Another court has clearly and correctly expressed the law on this subject, as fol- lows: " The guarantor is entitled to notice, but cannot defend himself for want of it, unless the notice has been so long delayed as to raise a presumption of payment, or waiver, or, unless he can show that he has lost, by the delay, opportunities for obtaining securities, which a notice, or an earlier notice, would have secured him. * If the notice be delayed for a very short time, but by reason of the delay the guarantor loses the opportunity of obtain- ing indemnity, and is irreparably damaged, he would be discharged from his obligation. But if the delay were for a long period, and it was nevertheless clear that the guarantor would have derived no benefit from an earlier notice, the delay would not impair his obligation."" "When the guaranty is such from its terms, or oth- ' Lou'sville Manf. Co. v. Welch, 10 155 ; Fear v. Dunlap, 1 Greene (Iowa) How. (U. S.) 461; Johnson v. Wil- 331; Fuller -o. Scott, 8 Kansas, 25; marth, 13 Met. (Mass.) 416; Bank v. Wildes v. Savage, 1 Story, 22. To the Knotts, 10 Rich. Law (So. Car.) 543; same effect, see many other oases dted Leech v. Hill, 4 Watts (Pa.) 448; Sko- in this chapter and other points, field J). Haley, 22 Me. 164; Beebe u. ''Woodson v. Moody, 4 Humph. Dudley, 26 New Hamp. 249; Farmers (Tenn.) 303. & Mechanics Bank v. Keroheval, 2 ^ Gibbs v. Cannon, 9 Serg. & Rawle Mich. 504; Union Bank». Coster's Exr. (Pa.) 198; Overton v. Tracey, 14 Serg. 3 New York, 203; Wolfe v. Brown, 5 & Rawle (Pa.) 311. Ohio St. 304; Reynolds v. Douglass, * March ». Putney, 56 New Hamp. 12 Peters, 497; Gilhghan v. Board- 34, per Stanley, J. man, 29 Me. 79; Bashford v. Shaw, 4 " Second National Bank v. Gaylord, Ohio St. 264; Voltz v. Harris, 40 111. 34 Iowa, 246, per Day, J. EEASONABLE TIME FOE GIVING NOTICE. 249 erwise, that notice is necessary to put the guarantor in default, such notice may, if the principal be insolvent when the debt be- comes due and so remain, be given at any time before suit brought, and the same diligence is not required as in cases where the principal is solvent when the debt becomes due. The insol- vency of the principal has a controlling influence on the question of the reasonable time in which notice should be given. ' § 174:. What is the reasonable time ■within which notice must be given — Pleading. — No general rule can be laid down as to the time within which notice of the acceptance of the guaranty, or of the default of the principal, must be given the guarantor when such notice is necessary. All that can be said is, that the notice must be given within a reasonable time, all the cir- cumstances of each particular case being considered.'' What is such reasonable time has been held to be a question of law,' especially where there is no dispute about the facts." This question can very seldom, however, be resolved into a mere ques- tion of law, to be decided by the court, but must generally be a mixed question of law and fact, to be determined by the jury un- der proper instructions by .the court.° It has been held that in determining whether notice of the acceptance of a continuing guaranty has been given within a reasonable time, reference must be had to the time of the acceptance of the guaranty, and not to the last sale under it." Where a guaranty was a continuing one for certain drafts to be accepted, it was held, that if the course of dealing between the parties was sufficient to justify a finding that the guarantor had notice of acceptance, it might be inferred that notice accompanied each transaction. The guaranty being continuous, the notice would be continuous also.' When notice of default in payment on the part of the principal is necessary to ' Salem Manf. Co. v. Brower, 4 Jones ^Seaver v. Bradley, 6 GreerJ. (Me.) Law (Nor. Car.) 429; Protection Ins. 60. Co. V. Davis, 5 Allen, 54; Paige i;. *Lowry». Adams, 22 Vt. 160; Louis- Parker, 8 Gray, 211; Salisbury «. Hale, ville Manf. Co. ». Welch, 10 How. 12 Pick. 416. See, also, on this sub- (U. S.) 461; Wadsworth v. Allen, 8 ject, Reynolds v. Edney, 8 Jones Law Gratfc. (Va.) 174; Seaver v. Bradley, 6 (Nor. Car.) 406. Greenl. (Me.) 60. ' Montgomery ». Kellogg, 43 Miss. ' Mussey v. Rayner, 22 Pick. 223. 486; Howe v. Nickels, 22 Me. 175. ' First National Bank of Dubuque v. Manf. Co. r. Brower, 4 Carpenter, 41 Iowa, 518. Jones Law (Nor Car.) 429, Craft v. Isham, 13 Ct. 28. 250 KOTICE AND DEMAIJD. charge the guarantor, the declaration should aver the notice; but a general statement of notice, as " of which premises the defend- ant had due notice," is sufficient.' If notice is alleged in the dec- laration when it is not necessary, in order to charge the guarantor, the allegation may be treated as surplussage, and need not be proved." § 175. How notice may be proved — What amounts to waiver of it. — When notice to the guarantor is necessary in order to charge him, such notice need not be proved by direct evidence, but may be inferred from circumstances.' The notice need not be in writing nor in any particular form.* It may be given by letter.' It need not be given by the creditor. If knowledge is brought to the guarantor in any manner he can protect himself ° It may be inferred from what took place at the time of giving the guaranty, 'subsequent casual conversations of the guarantor with third persons, and his conduct and remarks in reference to the collection of the demand of the person for whose benefit the guaranty was given.' It is sufficient if the notice is given by the person for whom the guarantor became holden.* Notice of " about the amount " of goods furnished under a guaranty is sufficient." It has been held, that notice was sufficiently shown by the fact that the guarantor and the principal were close neigh- bors and relatives, and that the guarantor took other steps to further the credit of the principal with the ci-editor, and knew of advances made by the creditor to the principal." Where a father-in-law lived just across the street from his son-in-law, and frequently passed his store, and dealt with . him occasionally, it was held, these facts did not constitute notice to the father-in-law of the acceptance of a guaranty for goods to be sold the son-in- law." The fact that the principal and guarantor were relatives, and had been partners, has been given weight, and with other cir- 1 Lewis V. Brewster, 2 McLean, 21; S. (So. Cax.) 410 ; Oaks v. WeUer, 16 Oaks V. Weller, 16 Vt. 63. Vt. 63. ^ Gibbs V. Cannon, 9 Serg. & Rawle ' Woodstock Bank v. Downer, 27 (Pa.) 198. Vt. 539. ' Rankin v. Childs, 9 Mo. 665; Law- s Qaks v. Weller, 16 Vt. 63; Noyes v. ton V. Maner, 9 Rich. Law (So. Car.) Nichols, 28 Vt. 159. 335. » Noyes v. Nichols, 28 Vt. 159; but ^Reynolds v. Douglass, 12 Peters, see Spencer v. Carter, 4 Jones Law 497. (Nor. Car.) 287. ' Dole V. Young, 24 Pick. 250. " Menard v. Soudder, 7 La. An. 385. • Griffin V. Rembert, 2 Rich. Law N. " Craft v. Isham, 13 Ct. 28. "WAIVER OF NOTICE AND DEMAND. 251 cumstances held to be sufficient evidence of notice to tlie guaran- tor.' An acknowledgment by the guarantor of his liability and a promise to pay, supersedes the necessity of any further evidence of notice of the acceptance of ,the guaranty ; ^ and of default of the principal.^ Where the guaranty expressly waives demand and notice, the guarantor is liable to an action thereon without previous demand or notice; * and in such case the guaranty can- not be contradicted by oral evidence of a contemporaneous agree- ment to collect the note from the principal, and of laches in pur- suing him.^ The guarantor cannot complain of want of notice of acceptance of the guaranty, when his acts and declarations amount to a waiver of such notice.^ ' Lowiy V. Adams, 22 Vt. 160. * Worcester Co. Institution v. Davis, «Peok 1}. Barney, 13 Vt. 93. 13 Gray, 531. 'Breed v. Hillhouse, 7 Ct. 523. 'Trefethen v. Locke, 16 La. An. 19 *Bictford v. Gibbs„8 Cush. 154. CHAPTER IX. OF THE EiaHTS OF THE SUEETY OB, GUARANTOR AGAINST THE PEINCIPAL. Section. Promise by principal to indem- nify surety implied. When cause of action accrues to surety .... Surety may pay by instalments and sue principal for every in- stalment. Implied contract of indemnity arises when surety becomes bound Surety -who pays the debt may sue principal in assumpsit, and is entitled to full idemnity from all or any one of the prin- cipals .... When joint sureties can, and ■when they cannot, maintain joint suit for indemnity Surety who has not been re- quested to become such, cannot recover indemnity. Surety who pays may immediately sue principal without demand or notice . . . . Surety who pays the debt with his own note or property, may at once sue the principal for indemnity .... Surety who extinguishes the debt for less than the fuU amount, can only recover from the prin- cipal the value of what he paid Surety can only recover from principal the amount paid, and not consequential or indirect 177 178 179 BflFect of j udgment against surety on liability of principal for in- Section demnity; notice; statute of limitations, etc. . . . 184 How claim of surety against prin- 176 cipal affected by usury. Wager 185 When surety of one partner en- tiled to recover indemnity from the firm . . .186 When principal liable to surety for costs paid by surety . 187 Mortgage for indemnity of surety valid. What it covers . 188 Effect of the bankruptcy of the principal on the surety's claim for indemnity . . . 189 When surety may by express con- tract recover indemnity from principal before paying the debt. Mortgage of indemnity, etc 190 When special contract of indem- nity vsdll not authorize surety to recover before paying the 180 debt, etc 191 Sm-ety may, before paying the debt, bring suit in chancery to compel principal to pay it . 192 181 Cases in which, surety may have relief in equity before paying the debt . . . . 193 Cases in which a surety cannot recover indemnity from the 182 principal . . . .194 Set-off. Surety may bid at ex- cution sale of principal's prop- erty. Surety may assign his 183 claim against the principal, etc. 195 When insolvent principal cannot collect debt due him by surety. (252) PBOMISE TO INDEMNIFY IMPLIED. 253 Section. Verbal guarantor who pays ' debt may recover indemnity. Other cases .... 196 Surety on note who pays without notice of failure of considera- tion, may recover indemnity. When surety who has joined Section, in fraudulent scheme with principal may recover indem- nity. Other cases . . 197 Other cases as to rights of surety against principal . . . 198 Statute of limitations as between surety and principal . . 199 § 176. Promise by principal to indemnify surety implied — When cause of action accrues to surety. — Upon payment] by the surety or guarantor of the debt for which he is bound, the , same being then due, a right of action for reimbursement imme- diately arises in his favor and against the principal. In the ab- sence of an express agreement the law implies a promise of in- demnity on the part of the principal. If the debt is due, the ] right of action on this implied promise accrues to the surety or guarantor at the time he pays the debt, or a part of it, and not before.' Consequently a surety cannot commence an attachment suit against his principal before the note he has signed is due, and before he has paid it, under the provision of a statute allow- ing an attachment to be brought in certain cases where " noth- ing but time is wanting to fix an absolute indebtedness." Here something besides time is wanting, for the principal may pay the debt when due and the surety never be damnified." Judgment was obtained against a surety on a note, which he paid. The amount of the note was within the jurisdiction of a justice of the peace, but the amount of the judgment, and which was paid, was not. Held, the surety could not sue for indemnity before a justice, as his cause of action arose upon payment of the judgment and was for the amount paid.* A surety who had not paid the debt for which he had become bound, had ef- fects of the principal in his hands whi6h had not been left with him for his indemnity. He was summoned as garnishee of the principal, and it -was held that he was liable even though he was afterwards sued for, and obliged to pay, the debt of the principal. He had no right of action against the principal when summoned as garnishee." If the surety takes a bond of 'Pigou V. French, 1 Washington, (U. S.) 278; Ford ». Stobridge, Nelson 24; Forest v. Shores, 11 La. (Curry) 416. ^ Dennison ». Soper, 83 Iowa, 183. 8 Blake v. Downey, 51 Mo. 437. ^ Ingalls V. Dennett, 6 Greenl. (Me.) 79. 254 EIGHTS OF SUEETT AGAINST PEINCIPAL. indemnity from the principal, it has been held that he cannot upon paying the debt sne the principal upon an implied promise, but is confined to his remedy on the bond upon the ground that " Promises in law only exist where there is no express stipula- tion." ' But it has been held that where a surety takes security for his indemnity from a stranger, the presumption is that it is cumulative, and the implied obligation of the principal to indem- nify the surety is not waived or merged.^ The implied promise of indemnity arises in favor of the surety, who pays the debt without suit against him.' The surety may without the request of the principal, pay the debt before it is due, and after it is due sue the principal for indemnity. In such case the cause of action accrues to the surety at the time the debt becomes due.* With reference to this matter, an eminent judge has said: "Why may not a surety take measures of precaution against loss from a change in the circumstances of his principal, and accept terms of compromise before the day which may not be attainable after it? He may ultimately have to bear the burden of the debt, and may therefore provide for the contingency by reducing the weight of it. Nor is he bound to subject himself to the risk of an action by waiting till the creditor has a cause of action. He may, in short, consult his own safety, and resort to any meas- ure calculated to assure him of it, which does not involve a wanton sacrifice of the interests of his principal." ' § 177. Surety may pay by instalments, and sue principal for every instalment — Implied contract of indemnity arises when surety becomes bound. — When the debt becomes due the surety may pay a part of it, and immediately sue the principal for the amount so paid. If he pays difi'erent parts at different times, he may sue the principal for each part when he pays it. This is not making several claims of one, because the debt due the cred- itor is not the surety's cause of action. His cause of action is the payment which he has made for the principal, and it is com- plete the instant he makes the payment.' " However convenient ' Toussaint v. Martinnant, 2 Durn. ^ Gibson, C. J., in Craig v. Craig, 5 & East, 100, per Buller, J. Rawle (Pa.) 91. ''Wesley Church v. Moore, 10 Pa. « Bullock v. Campbell, 9 Gill (Md.) St. 273. 182; WUliams, Admr. «;. Williams' ' Mauri v. Heffernan, 13 Johns. 58. Admr. 5 Ohio, 444 ; Pickett v. Bates, 8 'White V. Miller, 47 Ind. 385; Til- La. An. 627. lotson V. Rose, 11 Met. (Mass.) 299. PAYMENT BY INSTALMENTS. 255 it might be to limit the number of actions in respect of one suretyship, there is no rnle of law which requires the surety to pay the whole debt before he can call for reimbursement." ' A surety paid the creditor part of the amount due on a note with a view of reducing it within the jurisdiction of a justice of the peace, and sued the principal for the sum so paid. Held, that as he was bound for the debt, he had a right to make a partial pay- ment and recover the amount paid without regard to the intent with which the payment was made." Although the surety can- not, in the absence of express contract, sue the principal for indemnity before he actually pays the debt, yet the implied con- tract for indemnity arises immediately upon the surety becoming hound. The law upon this point has been thus stated : " It is clear that the contract of a principal with his surety to indem- nify him, for any payment which the latter may make to the creditor, in consequence of the liability assumed, takes effect from the time when the surety becomes responsible for the debt of the principal. It is then that the law raises the implied contract or promise of indemnity. ISTo new contract is made when the money is paid by the surety, but the payment relates back to the time when the contract was entered into by which the liability to pay was incurred. The payment only fixes the amount of damages for which the principal is lia- ble under his original agreement to indemnify the surety." ' This was held in a case where the question was whether the principal was entitled to a homestead. The same principle was held where a voluntary conveyance was made by the principal after the surety became bound, but before he paid the debt, and the con- veyance was set aside at the suit of the surety.* A was indebted to B in $100, but he was surety for B for $500. B conveyed all his accounts to an assignee, before A paid anything on account of his suretyship ; afterwards A paid the amount for which he was liable as surety. Held, the assignee could recover nothing from A. The court said : " We think there exists in a surety, an equity from the time of his assuming the relation, by virtue of the implied undertaking on the part of the principal to see him indemnified, and that although no prefect right of action accrues ' Davies v. Humphreys, 6 Mees. & *Per Bigelow, J., in Rice v. South- Wels. 153, per Parke, B. gate, 16 Gray, 142. ■' Hall V. Hall, 10 Humph. (Tenn.) *Choteau v.Jonea, 11 111. 300. 352. 256 EIGHTS OF SUEETY AGAIKST PEIKCIPAL. until actual payment, still such payment lias such reference to the original undertaking of suretyship, that it overrides any equi- ties of a subsequent date." ' § 178. Surety who pays the debt may sue principal in assump- sit, and is entitled to full indemnity from all or any one of the principals. — The surety or guarantor who has paid the debt of the principal, may maintain an action of assumpsit against the principal for money paid at his request. " It has been held, that if the surety in any way (as by his land being sold on execution) extinguishes, or pays the debt of the principal, it is, so far as the principal is .concerned, equivalent to paying money for his bene- fit and at his request, and the surety may maintain general as- sumpsit against the principal for money paid. ^ The surety can- not recover indemnity from the principal by an action in tort. ' If one of several joint guarantors pays the debt for which all are bound, he has thereby a separate right of action against the prin- cipal. ° The law implies a several assumpsit by the principal to reimburse the surety who pays the debt, and, therefore, if the surety who pays the debt releases his co-surety from all claim for contribution, such release does not affect his claim for indem- nity against the principal." Unless there is an express agree- ment to the contrary, the surety is entitled to claim indemnity from all his principals. Thus certain parties, being appointed executors of a will, part of them made a joint bond as such, and a surety also signed the bond. Afterwards A, another of the exe- cutors, signed the bond. There was but the one surety, and, when he signed the bond, he stated that he signed it as surety for B, one of the executors, and wished the other executors to get differ- ent bondsmen. B was guilty of a default and died, and after- wards judgment was recovered on the bond against the surviving executors, including A, and also against the surety. The surety paid the judgment, and sued all the surviving executors for in- 1 Barney v. Grover, 28 Vt. 391, per 308; Warrington v. Furbor, 8 East. Redfield, C. J. ; see, also, Morrow v. 242. Morrow, 2 Tenn. Ch. R. (Cooper) 549; ' Hulett v. Soullard, 26 Vt. 295. Loughridge v. Bowland, 52 Miss. *Ledbetteru.Torney, 11 Iredell Law 546. (Nor. Car.) 294. ^Morricew.Redwyn, 2Barnardiston, 'Lowry v. Lumbermen's Bank, 2 26; Davies v. Humphreys, 6 Mees. & Watts & Serg. (Pa.) 210. Wels. 153; Ford v. Keith, 1 Mass. 189; « Crowdus v. Shelby, 6 J. J. Marsh, Exall V. Partridge, 8 Dum. & East, (Ky.) 61. JOINT SUIT FOE IHDEMNITT BY SUEETIES. 257 demnity. Held, that A, by signing tlie bond subsequent to the time the surety signed, recognized the surety as his surety, and this was eqixivalent to a previous request, and that A and all the surviving e^cecutors were liable for the indemnity of the surety. ' If the surety is bound for several principals, he is entitled to re- cover from any one of them the whole of what lie has paid. Each of the principals is debtor for the whole of the debt to the creditor, , and the surety, being liable for each of them, has, by paying the debt, freed each of them from the creditors' claim for the whole, and consequently has a right to recover the whole amount from any one of them. ^ He may recover the whole amount from the surviving one of two principals, ' or from the estate of a deceased principal where there are several surviving principals. * § 179. When joint sureties can, and vrhen they cannot, maintain joint suit for indemnity. — If there are several sureties for the same debt, and each pays a portion of it from his individ- ual money, they cannot join in a suit against the principal for the money so paid.' "Where, however, the payment is made by several sureties from a joint fund, they may join in an action against the principal. Thus, two sureties who were jointly liable as such for a debt, borrowed money to pay a portion of it, for which they gave their joint note, and to pay the balance they gave their joint note to the creditor, who accepted it as payment. Held, they might properly bring a joint suit for indemnity against the principal.' Three parties having jointly guarantied a debt and received back a mortgage of indemnity, two of them paid the debt, and they all joined in a bill to foreclose the mortgage. Held, they might properly do so.'' A judgment was rendered against several persons as heirs of a surety, and they gave a surety ' Babcock v. Hubbard, 2 Ct. 586. Hamp. 418; Bunker v. Tufts, 55 Me. ' Apgar's Admrs. v. Hilar, 4 Zabr. 180. (N. J.) 812; Dickey?). Eogers, 19 Mar- « Pearson v. Parker, 3 New Hamp. tin (La.) 7 N. S. 588; Bunce ». Bunoe, 366; to same effect, see Whipple v. Kirby (Ct.) 187. Briggs, 28 Vt. 65. 'Riddle v. Bowman, 27 New Hamp, ' Dye v. Mann, 10 Mich. 291. Hold- 286. ing that sureties who have paid for *West V. Bank of Rutland, 19 Vt. the default of a tax collector, and been 403. authorized by statute to bring suits * Sevier i>. Roddie, 51 Mo. 580; for their indemnity against persons Parker v. Leek, 1 Stew. (Ala.) 523; owing taxes, may ,ioin in such suits; Appleton V. Bascom, 3 Met. (Mass.) see Prather v. Johnson, 3 Harr. & 169; Peabody v. Chapman, 20 New Johns. (Md.) 487. 17 268 EIGHTS OF STJKETY AGAINST PEINCIPAL. for a stay of execution, but afterwards paid the judgment. Held, they might jointly sue the principal for indemnity. " Their lia- bility arose upon the fact that we must presume that his (the ancestor's) estate came into their hands; otherwise they would not have been responsible. It was their joint debt, then, as heirs," and having made payment jointly they were entitled to join in a suit for indemnity.' Where several individuals, acting as partners, and in their partnership name, became sureties for another partnership, and after the dissolution of both partner- ships, were called upon to pay, and jointly paid the amount for which they were so liable, it was held that they might maintain a joint action for indemnity.'' B and G were joint sureties, and B died. His executor was a partner in business with G, and the two partners paid the debt out of their joint funds as partners. Held, they could not join in a suit for indemnity. They were not joint sureties, nor was the money paid for a partnership debt. Hav- ing made the payment on a matter foreign to their partnership ■concerns, it operated as a severance of their joint interest in the money paid.^ § 180. Surety -who has not been requested to become such "Cannot recover indemnity — Surety VT-ho pays may immediately sue principal w^ithout demand or notice. — A surety cannot Ordi- narily recover indemnity from the principal, unless he became surety at tlie request of the principal, either express or implied.' After a bond had been executed by principal and surety, another 'person, at the instance of the holder, but without the knowlege or consent of the maker, guarantied the bond- by indorsing on it .as follows: "This is a good bond." He was compelled to pay the bond, and sued the original surety for indemnity. Held, lie was not entitled to recover, because he was not an indorser in the nsual sense of that term, and he had not been requested to be- ■become surety by the party he sought to charge.^ A and B were principals and C and D sureties in a bond. Before signing, it was agreed that C should be the surety of A, and D the surety of B, but this did not appear from the instru inent. C and D each paid one-half of the debt, and A indemni- ' Snider v. Gre^ithouse, 16 Ark. 72. 338; McPherson v. Meek, 30 Mo. "■ Day V. Swann, 13 Me. 165. 345. » Gould V. Gould, 8 Covven, 168. ' Carter v. Black, 4 Dev. & Bat. Law . Harmon, 8 ty cannot sue the principal for money Blackf. (Ind.) 112; Bennett v. Bucha- paid when he has made payment by nan, 3 Ind. 47. his bond, see Boulware v. Robinson, 8 ' Peters )). BarnhiU, 1 Hill Law (So. Texas, 327; Morrison v. Berkey, 7 Car.) 237, per O'Neall, J. Serg. & Rawle (Pa.) 238. » Lord V. Staples, 23 New Hamp. 448; = Reynolds v. Skelton, 2 Texas, 516. Bonney v. Seely, 2 Wend. 481. «Landrum v. Brookshire, 1 Stewart « Bums V. Parish, 3 B. Mon. (Ky.) 8. (Ala.) 252. SUEETr CAN ONLY KECOVEK VALUE OP PAYMENT. 261 § 182. Surety, who extinguishes the debt for less than the full amount, can only recover from principal the value of -what he paid. — If the surety extinguishes the debt of the principal for any sum less than the full amount thereof, he can, in the absence of express contract, only recover from the principal the amount paid by him,' and interest thei'eon." The implied contract is, that the surety shall be indemnified only, and he will not be al- lowed to speculate out of his principal. If he pays in depre- ciated bank notes, or other money which is below par, but is taken by the creditor at par, he can only recover from, the prin- cipal the par value of such money.' If he pays in land he can only recover the value of the land. " He is entitled to recover the amount paid, not the amount extinguished by that payment.'" A surety paid the debt of his principal to a bank, a small por- tion in bills of the bank, and the l^alance by his note to the bank. During all that time, the notes of the bank were worth only fifty cents on the dollar, but the bank received them at par for debts due it. Held, that as the bank had received the note of the surety as payment of the debt, he might, before paying the note, sue the principal for indemnity, but could only recover fifty per cent, of the amount of the note and the actual value of the money he had paid, that being the extent of his damage.' If the surety, who compounds a debt for which his principal and himself have become jointly liable, takes an assignment of the debt to a trustee for himself, he can only claim against his principal the amount which he has paid. He occupies in that regard, the same position as an agent, and cannot speculate out of his prin- cipal. " It is on a contract for indemnity that the surety be- comes liable for the debt. It is by virtue of that situation, and because he is under an obligation as between himself and the creditor of his principal, that he is enabled to make the arrange- ' Eaton V. Lambert, 1 Nebraska, Marsh (Ky.) 457; Hall's Admr. v. 839; Pickett ». Bates, 8 La. An. 627; CresweU, 12, GDI & Johns. (Md.) 36; Coggeshall v. Ruggles, 62 III. 401; Crozier v. Grayson, 4 J. J. Marsh, Crozier v. Grayson, 4 J. J. Marsh (Ey.) 514; Butler v. Butler's Admr. (Ey.) 514; Blowui Maynard, 2 Leigh 8 West Va. 674; Feamsteru. Withrow, (Va.) 29. 9 West Ya. 296. ' Hicks V. Bailey, 16 Tex. 229; Miles ■* Bonney v. Seely, 2 Wend. 481, per V. Bacon, 4 J. J. Marsh (Ey.) 457. -Savage, C, J. 'Eendrick v. Forney, 22 Gratt, 'Jordan Admr. ». Adams, 7 Ark. (Va.) 748; Miles ». Bacon, 4, J. J. (2 Eng.) 848. 262 EIGHTS OF STIIiETY AGAINST riilNCIPAL. ment with that creditor. It is his duty to make the best terms he can for the person in whose behalf he is acting." ' § 183. Surety can only recover from principal the amount paid, and not consequential or indirect damages. — In the ab- sence of an express agreement to the contrary, a surety who has paid the debt of his principal can only recover from the principal the amount paid by him. He cannot recover anything for what he has been obliged to sacrifice, by selling his property for less than its value, nor for any incidental loss. "To these disadvantages he voluntarily exposes himself when he becomes surety, and the law affords him no relief against his principal for these consequential damages. * To establish a different rule would create endless confusion, collusion, combination and fraud.'" He cannot, when he has not paid the debt, but has been dis- charged under an insolvent act, recover from the principal dam- ages which he has suffered by being imprisoned on accouut of the debt.' He may agree with his principal upon a certain price for the uSe of his credit, but unless there is a special agreement, he can recover nothing for it. It has been held that where there is an express agreement that something shall be paid, nothing can be recovered unless the sum to be paid is fixed by the agreement." A party became surety in a duty bond to the United States, which was captured in time of war by the English, and by them a capias was issued against the obligors in the bond. The surety fled, to avoid being arrested, and thereby his business was broken up, and he was put to great expense, and- not having paid the bond, he sued certain parties for indemnity, who had agreed 'to save him harmless. Held, he was not entitled to recover. The court said that if a surety is broken up by paying the debt of his prin- cipal, he cannot recover for such consequential damages. " Flight to avoid payment of the debt, is an accident wholly unforeseen, and its consequences cannot be considered as provided for. The principal had a right to calculate upon his surety's ability to pay, >Reed ». Norris, 2 Mylne & Craig, holding it for the full amount, the 361, per Lord Cottenham, C; contra, same as a stranger might. Blowt). Maynard, 2 Leigh (Va.) 29, = Vance v. Lancaster, 3 Haywood, where it is said that there is nothing in (Tenn ) 130, per Roane, J. the relation of principal and surety ^ Powell v. Smith, 8 Johns. 249. which will prevent the surety from *Perrine». Hotchkiss, 58 Barb. (N. buying the claim against the principal, Y.) 77. and taking an assignment of it and JUDGMENT AOAmST SUEETY, NOTICE, ETC. 263 and did not stipulate to save him harmless from anything but the payment of money.'" § 184. Effect of judgment against surety, on liability of prin- cipal for indemnity — Notice — Statute of Limitations, etc. — The surety ou a note, who, without knowing of a defense, has let judgment go against him by default, and has paid the judg- ment, may recover indemnity from the principal, notwithstand- ing the fact that the principal who was sued at the same court in another suit, by defending the same, obtained a judgment in his favor. "To the suggestion that the surety might have resisted and defeated the recovery, he may reply tliat he was a stranger to the consideration of the note, and was privy to noth- ing more than the terms of an absolute obligation, which he bound himself to make good, if not punctually fulfilled. But if he had been made privy to the principal's defense, then he might have lost his right to redress." " So, where principal and surety were sued on a note, and the signature of the principal not being proved on the trial, judgment was had against the surety alone, which he paid, it was held that he might recover indemnity from the principal." If the principal has notice of the suit against his surety, he is bound by the result of the litigation, and a foreign judgment has the same effect in this regard, as one of the courts in which the suit for indemnity is brought." In such case, the principal cannot complain that the suit was unskillfuUy defended by the surety .' The fact that when a surety is sued, he fails to notify his principal of such suit, will not preclude him from re- covering indemnity.* If the surety on a bond which ought probably to have been avoided on the ground of illegality in the consideration, has naade a reasonable defense in a suit brought on the bond, and has been defeated and paid the judgment, he may recover indemnity from the principal.' A surety sued in one state on a warranty of a slave there made, may in another state recover against his principal, who had notice of the pendency of such suit, whatever is legally adjudged against the surety by 'Hayden v. Cabot, 17 Mass. 169 571. See, also, on tliis subject. Hare per Parker, 0. J. v. Grant, 77 Nor. Car. 203. '^ Stinsou «. Brennau, Gheves Law 'Rice ». Rice, 14 B. Mon. (Ky.) 335. (So. Car.) 15, per Butler, J. * Williams v. Greer, 4 Haywood » Peters v. BamhiU, 1 Hill Law (So. (Tenn.) 235. Car.) 234. ' Mpntgomeiy ». Russell, 10 La. ^Konitzky v. Meyer, 49 New York, (Curry) 330. 264 EIGHTS OF SURETY AGAINST PKmCIPAL. the laws of the state in which the suit against him was brought.' The administratrix of a surety was sued for the debt of the prin- cipal after it was barred by the statute of limitations as to the estate of the surety, but before it was barred by the statute as against the principal. Instead of pleading the statute, she sub- mitted the matter to referees, who awarded that she should pay the debt, which she did. Held, the principal was liable to reim- burse the money so paid. The principal was liable to pay the debt, and it made no diiference to him that the surety had done so, without insisting on the bar of the statute." But where a party was surety for another in a bond replevying an execution, and by statute in such case, if an execution was not issued by the creditor within one year after he had a right to issue it, the sure- ty was discharged, and execution was not so issued, and the surety, after he was discharged by the terms of the law, paid the debt, without having it assigned to him, it was held he could not re- cover indemnity from the principal. As he was under no obliga- tion to pay the debt, the law would not imply a contract of in- demnity.* § 185. Sovr claim of surety against principal affected by usury — Wager. — If the surety to a contract tainted with usury of which he has knowledge, pays the usury, it has been held that he cannot recover such usury from the principal, but can only recover what the creditor could have recovered.* But where the surety on an usurious note, who did not know of the usury when he signed it, but had knowledge of the fact when he paid it, sued the principal for indemnity, it was held he was entitled to re- cover unless he had been notified by the principal not to pay the the note before he paid it. The principal might avail himself of the statute against usury, but was not obliged to do so, and the surety could not know his intention in that regard, unless no- tified thereof.' So, where the creditor had recovered a judgment against principal and surety, and the surety had paid the judg- ' Thomas u. Beckman, 1 B. Mon. * Ford «. Keitli, 1 Mass. 139. For a (Ky.) 29. case holding (under peculiaj: ciroum- ^ Shaw D. Loud, 12, Mass. 447. stances) that a surety can recover in- ' Kimble v. Cummins, 3 Met. (Ky.) demnity from the principal for usury 827. which he has been compelled to pay, * Jones V. Joyner, 8 Ga. 562; Mims see Kock v. Block, 29 Oliio St. 565. V. McDowell, 4 Ga. 182; Whitehead v. Peck, IKeUy (Ga.)140. SUEETT OF PAETNEE ENTITLED TO INDEMNITY FEOM FIEM. 265 meiit, it was held that the principal could not set up against the claim of the surety for indemnity, the fact that part of the judg- inent was for usury.' A surety having become liable on a note, the principal executed to him a bill of sale of cliattels for his in- demnity. Held, the bill of sale was executed upon sufficient consideration, even though the original note was usurious, unless the surety was privy to the usury." Where a note was given to secure money bet in the State of Missouri, on the electiou of a President of the United States (such bet being prohibited by law), and a surety on the note, who knew when he signed it the consideration for which it was given, was compelled by legal pro- cess in a foreign jurisdiction to pay the same, it was held he could not recover indemnity from the principal. He was privy to an illegal transaction, and could ground no claim to relief up- on it. If the principal could be in this manner compelled to pay, the policy of the law in making the note void would be de- feated.' § 186. When surety of one partner entitled to recover indem- nity from the firm. — When a partner gives his individual note, with surety for a debt of the iirm and the surety pays it, he may recover indemnity at law from all the members of the firm." The same thing was held where the note was under seal.^ A and B were partners, and A .hired help for which the firm would on gen- eral principles of law have been liable, but gave his individual bond with C as his surety for the hire. had the debt to pay, and brought a suit in equity to recover indemnity from A and B. Held, he was entitled to recover from both.' One of several partners executed a bond in his individual name to the United States, for duties on goods imported on account of the partnership, and the plaintifis executed the bond as sureties. The plaintifis paid the debt and brought an action for money paid against all the jjartners. Held, they were not entitled to recover, as there was no privity between them and the partners, who did not sign the bond. The bond being under seal discharged the claim of the United States for the duties, and its remedy was thereafter on the ' Wade V. Green, 3 Humph. (Tenn.) * Burns v. Parish, 3 B. Mon. (Ky.) 547. But see LucHngs' Admr. v. Gegg, 8; Hikes v. Crawford, 4 Bush. (Ky.) 19. 12 Bush (Ky.) 298. ' Purviance v. Sutherland, 2 Ohio St. "Spaulding v. Austin, 2 Vt. 555. 478. ' Harley v. Stapleton's Admr. 24 * Weaver v. Tapscott, Leigh 9 (Va.) Mo. 248. 424. 266 EIGHTS OF SITEETY AGAINST PBINCIPAL. bond, and against tlie parties alone who signed it. The remedy of the sureties was against the partner wlio signed the bond, al- though tlie court in one case said it might be if such partner was insolvent, and the firm owed him the sureties could have relief in equity.' § 187. When principal liable to surety for costs paid by sure- ty. — "Whether the surety, who has paid costs on account of the debt of the principal, can recover such costs from the principal, depends ujjon the circumstances of each case. It has been held that he may recover from the principal costs which he has in good faith incurred and paid, litigating the claim upon which he is surety.^ An eminent judge, in discussing this subject, said: " If, when a surety was sued upon the debt of his principal, and was unable to pay it, and the same went into judgment and was levied upon his land, he must lose all costs recovered, and the ex- penses of the levy, because he did not pay the principal's debt more promptly than the debtor himself, whose duty it was to do it, and save the surety all trouble, it would certainly afl:brd a re- markable instance of absurd refinement, not to say refined absurd- ity ; and if the debt may be recovered (by the surety of the prin- cipal) as money paid, so equally may the costs." ° Where a joint . judgment is recovered against principal and surety, and the sure- ty pays the judgment and costs, he may recover such costs from the principal. Tlie principal has a right to defend the suit, and the surety is justified in letting the claim proceed to judgment, in the hope that the money may be made from the principal.* If the principal has agreed, in writing, to save the surety harmless, the surety ma}'^; on such agreement, recover costs which he has paid on account of the principal's debt.'' If the surety on a note, who is indemnified from loss on account of his suretyship, incurs expenses in defending a suit on the note, contrary to the expressed wishes of the principal, and after he is notified by the principal that there is no defense, he cannot hold the principal liable for 'Embree v. Ellis, 2 Johns. 119; ^Per Redfield, C. J. in Hulett v. Krafts ». Creighton, 8 Riuhardson Law Soullard, 26 Vt. 295; to same effect, (So. Car.) 273. see Wynn v. Brooke, 5 Rawle (Pa.) 'Downeru. Baxter, 30 Vt. 467; Ben- 106; McKee v. Campbell, 27 Mich, nett ». Cowling, 22 Texas, 660. See, 497. also, on this subject, Whitworthw. Til- * Apgar's Admr. v. Hiler, 4 Zabris- man, 40 Miss. 76; Thomson v. Taylor, kie (N. J.) 812. 11 Hun. (N.Y.) 274. » Bonney v. Seely, 2 Wend. 481. MOETGAGB FOE INDEMNITY. 267 such, expenses.' It has been held that where a surety knows there is no defense to the suit against him, he can recover no costs ex- cept those of a judgment by default." A undertook to pay cer- tain debts of B, and guarantied A's undertaking. A failed to pay one of the debts, and B was sued for it, and a judgment was had against him for the amount due and costs of suit. Held, B could not recover such costs from C. He should have paid the debt without suit, and prevented the making of costs.'' § 188. Mortgage for indemnity of surety valid — What it covers. — The liability of a surety or guarantor for the debt of his principal before he has made any payment on account thereof, is a sufficient consideration for the execution of a mortgage or trust deed for his indemnity, and such mortgage or trust deed will take precedence of any subsequent lien on tlie property encumbered thereby.* A promissory note for the payment of a certain sum of money, executed for the purpose of indemnifying the payee against his liability as a surety for the maker of an administra- tion bond, and to enable him to secure himself by an attachment of the property of the maker, is valid,- notwithstanding the payee at the time of its execution has not been damnified. The exist- ing liability with an implied promise to pay that amount upon the principal indebtedness, forming a sufficient consideration for the note, and the note will be enforced against the objections of other creditors.^ Where principal and surety have signed notes, and before the maturity thereof the principal deposits money with the surety, upon the agreement that the surety shall apply the money so received to the payment of the notes, the principal can- not afterwards repudiate the agreement, the suretyship being a sufRcient consideration to support it.° Where a mortgage is given for the indemnity of a surety, it remains valid for that purpose notwithstanding the evidences of the debt or the instruments by which the surety is bound may be changed. This was held where ' Becldey v. Munson, 22 Ct. 299. 18 New Hamp. 209; Bank of Alabama ^ Holmes v. Weed, 24 Barb. (N. T.) v. M'Dade, 4Porfc. (Ala.) 252; Penning- 546. On this subject, see "Whitwortli ton v. "Woodall, 17 Ala. 685. ti. Tilman, 40 Miss. 76. '^Haseltine v. Guild, 11 New Hamp. ^Redfieldi). Haight, 27Ct. 31. 390. To the same effect, where the * Kramer v. Farmers and Mechanics surety expressly promised the principal Bank, 15 Ohio, 253; Uhler v. Semple, to pay the debt, see Gladwin v. Garri- 5 C. E. Green (N. J.) 288; Perkins v. son, 13 Cal. 330. Mayfield, 5 Port. (Ala.) 182; Hawkins « Mandigoi). Mandigo, 26 Mich. 849. f. May, 12 Ala. 673; Lane v. Sleeper, 268 lilGHTS OF SUEETY AGAINST PEINOIPAL. a mortgage was given conditioned to save the mortgagee harm- less from his indorsement of certain speciHed notes, and such notes as they became due were renewed by the substitution of other notes or drafts having different names upon them, but the obligation of the mortgagee was preserved through the whole series of renewals.' So, a mortgage to secure accommodation in- dorsers on a note payable to a particular bank, and so described in the mortgage, is valid to secure the same indorsers, though that bank did not discount the note, and another bank discounted a similar note for the same purpose and with the same indorsers.'' § 189. Effect of the bankruptcy of the principal on the surety's claim for indemnity. — ^A surety, who after the bank- ruptcy of the principal pays the debt, may generally recover in- demnity from the principal for the money so paid. The reason is that until he has paid the debt he usually has no cause of ac- tion against the principal, and no claim which he can prove against the principal's estate.' Upon this principle it has been held, that a person discharged under an insolvent act, is liable to his surety for the arrears of an annuity due since his dis- charge, which the surety has been obliged to pay.* If, how- ever, the bankrupt or insolvent act expressly provides for the adjustment of the claim for indemnity which a surety, who is liable at the time of the bankruptcy, may have, by reason of afterwards paying the debt, the terms of the statute will of course prevail. It has been held that such claim may be proved under the United States Bankrupt Law of 1867, and it will be barred unless it is proved." A guardian made default and was afterwards discharged in bankruptcy. His surety was afterwards compelled to pay the defalcation, and sued him for indemnity. Held, the surety was entitled to recover, as debts created by em- bezzlement were expressly excepted from the operations of the ' Pond V. Clarke, 14 Ct. 334; Smith Gordon, 6 Johns. 126; Emery ». Clarke, V. Prince, 14 Ct. 472; to same effect, 2 J. Scott (N. S.) 582; Comfort d. Eis- see Markell v. Eichelberger, 12 Md. enbeis, 11 Pa. St. 13; Haddens v. 78; Choteau v. Thompson, 3 Ohio St. Chambers, 2 Dallas (Pa.) 236. 424. *Page v. Bussell, 2 Mauls & Sel. * Patterson v. Martin, 7 Ohio, 225. 551; Welsh v. Welsh, 4 Maule & Sel. * Paul V. Jones, 1 Durn & East, 599; 333. McMullin?). Bank of Penn Township, ^Lipscomb v. Grace, 26 Ark. 231; 2 Pa. St. 843; Taylor v. Mills, Cowper, disapproving, Pogue t>. Joyner, 6 Ark, 525; Cake v. Lewis, 8 Pa. St. 493; (1 Eng.) 241. WeUs V. Maoe, 17 Vt. 503; Buel v. INDEMNITY TO SURETY BEFOEE PAYMENT OP DEBT. 269 Bankrupt Act, and this debt was so created.' If, after the surety has paid the debt, the principal becomes a bankrupt and is dis- charged as sucli, the discharge will bar the claim of the surety against the principal.' § 190. When surety may by express contract recover indem- nity from principal before paying the debt — Mortgage of indem- nity, etc. — While the surety or guarantor has usually, in the absence of express contract, no right of action against the prin- cipal for indemnity until he has actually paid the debt, yet he may by express contract be given such right of action before pay- ment of the debt. Thus where a bond of indemnity given to a surety on a lease, was conditioned for the payment of the rent, and to save him harmless from liability, it was held the surety could recover from the obligor the amount of the rent in arrear, even though he had not himself paid it. The Court said: '•When a bond is, as in this case, conditioned as well to pay the debt or sum specified as to indemnify and save harmless the obligee against his liability to pay the same, the obligee may recover the entire debt or demand upon default in 'the payment without having paid anything." ' The same thing was held where ^ bond to a sheriif was conditioned to save him harmless from all' "loss and liabilities" which he might sustain by selling certain property levied on by him, and a judgment was recovered against him for selling the property, which judgment he had not paid.^ So, where a mortgage was given to indemnify a surety, it was held he might foreclose the mortgage as soon as he was sued for the debt, and before he had paid it.^ Where A, being the prin- cipal in a bond, gave a deed of trust, one of the provisions of which was that the trustee should " save harmless " B, who was his surety in the bond, and another provision was that the trustee, " whenever required by the creditors of A, or by any surety who may be threatened with loss by reason of his surety- ship shall proceed to sell sufficient property to answer the ends of" the deed of trust, it was held that the trustee was not bound to 'Halliburton v. Carter, 55 Mo. 435. 'Tankersley v. Anderson, 4 Des. Eq. ' Smith 1} Kinney, 6 Neb. 447. (So. Car.) 44. To similar effect, see 'Bellonii). Freeborn, 63 New York, Thurston v. Prentiss, 1 Manning 383, per Allen, J. (Mich.) 193. See, also, on this point, * Jones V. ChUds, 8 Nevada, 121. To Dai'st v. Bates, 51 lU. 439. similar effect, see Carman' v. Noble, 9 Pa. St. 366. 270 EIGHTS OF SBEETY AGAINST PEINCIPAi. wait till the surety was actually damnified, hy having been com- pelled to pay the money, but that it was the duty of the trustee to relieve him. whenever he liad funds for the purpose. The Court said that, in equity, the money might be applied directly to the relief of the surety without passing into his hands, and thus en- dangering the creditor.' Where the principal placed in the hands of his surety a horse for his indemnity, " upon condition, that if (he) had the money to pay," etc., it was held that upon the debt becoming due and remaining unpaid, the surety might sell the horse and pay the debt with the proceeds." Principal and surety being joint makers of a promissory note, the principal covenant- ed with the surety to pay the amount specified in the note to the payees thereof on a given day, but made default. In an action on this covenant, it was held that the surety was entitled to re- cover the full amount of the note, although he had not paid any of it.' A surety being liable upon two promissory notes due at different times, took from the principal a bond and warrant of attorney, the penalty being in double the amount of the two notes, and the condition being for the payment of a sum equal to the amount of the two notes, at a time previous to the maturity of either. The first note became due, and the surety was obliged to pay it, and before the last note was due, and while it was un- paid, he entered up judgment on the bond for the amount of both notes. Held, the judgment was properly entered, and might be enforced even though the principal offered to pay the surety the amount he had paid on the first note.* Where a party, in con- templation of suicide, tied up in a bundle and left cash and notes indorsed to a surety, and addressed the bundle to the surety with directions that as soon as his death should be known the surety should, from the proceeds, indemnify himself, and if anything re- mained give it to the principal's children, and the surety re- ceived and claimed the property, it was held he might retain so much thereof as was necessary for his indemnity, and this upon the ground that, where a trust is created for a person without his ' Daniel v. Joyner, 3 Ired. Eq. (Nor. against the principal after the remedy Car.) 513. of the creditor against the principal "Bird «. Benton, 2 Dev. Law (Nor. has been barred by that statute. Car.) 179. A surety who has been Rucks v. Taylor, 49 Miss. 552. compelled to pay the debt w,thin the ' Loosemore v. Radford, 9 Mees. & period of the statute of limitations, "Wels. 657. may enforce a mortgage of indemnity * Smith v. James, 1 Miles ,(Pa.) 162. INDEMNITY TO SUEETY BEFOEE PAYMENT OE DEBT. 271 knowledge, he may afterwards affirm it.' If the principal ex- pressly agree to save the surety harmless from all loss and dam- age on account of the suretyship, the surety may, without pay- ing the debt, recover damages for imprisonment, which he has suffered on account of the debt." The allowance by commission- ers of a debt of the principal against the estate of a surety, when duly reported to the probate court and registered among the claims against the estate, is a damnification, and will entitle the administrator to sue the principal upon his special promise to " indemnify and save harmless" the surety." A promise by a principal to pay into the hands of a surety for his indemnity the amount for which he is bound, " whenever the surety shall be called upon by the creditor for payment, or shall have reason to doubt the ultimate ability of the principal to save him harmless," is a valid promise as against the creditors of the principal, and an action may be sustained on it by the surety against the prin- cipal, without paying any of the debt.'' ^ 191. When special contract of indemnity -will not authorize surety to recover before paying the debt., etc. — The right of the surety or guarantor to recover indemnity from the principal be- fore himself paying the debt, manifestly depends upon the terms or legal effect of the express contract for indemnity. . The liabil- ity of the surety for the debt of the principal is a sufficient con- sideration to support such a contract as against the principal or any of his creditors, and the terms or legal effect of the contract for indemnity will prevail, each particular case being governed by its own circumstances. After a note signed by principal and surety was due, the principal gave the surety a contract of indem- nity, engaging to pay the note to the creditor " so as wholly to indemnify and save harmless the * (surety) from his liability on said note by reason of signing the same as surety." Held, this was but a common contract of indemnity, and the surety must have sustained actual damage to entitle him to sue on it, as it could not be presumed that the contract was made to entitle the surety to sue on it at once. If the note had not been due when the contract'of indemnity was made, its construction would have been diflferent.' Where a surety receives from the principal ' Woodbury v. Bowman, 14 Me. 154. ■* Fletcher v. Edson, 8 Vt. 294. = Pow.ll )•. Smith, 8 Johns, 249. 'Adm'rs of Pond v. Warner, 2 Vt. 'Adm'rs. of Pond v. Warner, 2 Vt. 532; sec, also, Jeffers v. Johnson, 1 Za- 532. briskie (N. J.) 73. 272 EIGHTS OF STJEETY AGAINST PEINOIPAL. as indemnity, the principal's note payable at a particular time, it has been held that he might sue upon it, although he had not been compelled to pay the debt, the fair presumption being that by making the note payable at a day certain, the parties intended to provide an indemnity against suit rather than against ultimate loss.' "Where the note given by the principal to the surety for his indemnity.is in the nature of a collateral security only, it has been held that the surety may, on such note, recover whatever sum he has actually paid out, up to the time of trial and no more/ If an indemnified surety, by his own act, causes property of the principal levied on for the payment of the debt, to be released, the indemnitor is thereby discharged. Thus, C as principal, and A as surety, executed a note, and B at the same time gave A an agreement to save him harmless from all loss on account of such suretyship. The creditor obtained a judgment against A and C, and levied on property of G sufficient to satisfy the debt. A then replevied (stayed) the judgment for two years, the efiect of which was to release the property of C from the levy. Before the two years expired, C became insolvent, and A had the debt to pay. Held, he could recover nothing from B, as he had by his own act prevented the payment of the debt by C's property.' A mortgage given by a principal to a surety for his indemnity, can only be held by him for the very purpose for which it was given, and where it is given to indemnify him against payment of half a debt, it will not cover a payment of the other half.* E'er will such a mortgage cover a loan made by the surety to the principal.' § 192. Surety may, before paying the debt, bring suit in chan- ery to compel principal to pay it. — After the debt for which a surety or guarantor is liable has become due, he may, without pay- ing the debt and without being called upon by the creditor, file a bill in equity to compel the principal to pay the debt; it being unreasonable that a surety or guarantor should always have a cloud hanging over him, even though not molested for tlie debt.* 'Russell u. La Roque, 11 Ala. 352. 'Pope v. Davidson, 5, J. J. Marsh 'Little V. Little, ,13 Pick. 426; Os- (Ky.) 400. good V. Osgood, 39 New Hamp. 209; * Newell v. Hiirlburt, 2 Vt. 851. On Child V. Powder Works, 44 New same point, see McDowell v. Crook, 10 Hamp. 354; contra, Woodbridge v. La. An. 31. Scott, 3 Brevard (So. Car.) 193; see on ' Clark v. Oman, 15 Gray, 521. this subject, Williams v. Cheney, 3 « West v. Chasten, 12 Florida, 815 ; Gray, 215. Antrobus v. Davidson, 8 Merivale, 569; SUEETT MAT COMPEL PEINOIPAL T(D PAY DEBT. 273 This principle is universally recognized, and has been applied to a great variety of circumstances. Thus, a surety on a bond to secure a money debt was secured by another bond of indemnity, entered into by the principal debtor's father, who had died, having by will devised certain property specifically upon trust, to pay the debt. The creditor having applied to the surety, the surety had recourse to the executors, who said they had no funds in hand, and that they were unable under the will to raise the money by sale of any portion of the testator's estate, except un- der a decree of the court. Held, that the surety, although he had not paid anything, was entitled to maintain a bill against the executors for administration, payment of the debt, and indemnity, and that it was not necessary that the bill should be filed on be- half of all the creditors. The court said the following was the rule : " A court of equity will also prevent injury in some cases by interposing before any actual injury has been suffered by a bill which has been sometimes called a bill quia timet ^ in analogy to proceedings at the common law, where in some cases a writ may be maintained before any molestation, distress or impleading. Thus a surety 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 actually sued for it or not; and upon a covenant to save harmless, a bill may be filed to relieve the covenantee under similar circumstances." ' A surety whose principal is dead, may, before paying the debt, file a bill against the creditor and the executor of the debtor, to compel the executor to pay the debt, so as to exonerate the surety from liability. He may enforce, for his exoneration, any lien of the creditor on the estate of the principal, and may bring any suit in equity which the creditor could bring for the settle- ment of accounts and administration of the assets, wheth- er legal or equitable, but the creditor must be a party, that he may receive the money when it is recovered. ' The fact that Irioki). Black, 2 C. E. Green (N. J.) 'Woldridge v. Norris, (Law Rep.) 6 189 ; Bishop V. Day, 13 Vt. 81 ; Thig- Eq. Cas. 410, per GifFard, V. 0.; see. pen V. Price, Phillips Eq. (Nor. Car.) also. Miller r. Speed, 9 Heisk. (Tenn.) 146; Taylor v. Miller, Phillips Eq. (Nor. 196. Car.) 365; Sayljrs u. Saylors, 8 Heisk. "Stephenson ». Tavemers, 9 Gratt. (Tenn.)525; Greenes. Stames, 1 Heisk. (Va.) 398. (Tenn.) 582; Howell v. Cobb, 2 Cold. (Tenn.) 104. 18 274 EIGHTS OF SUEETT AGAINST PEINCIPAL. an administrator had become insolvent and wasted the assets, it has been held will not, before the time for settling the estate has come, entitle the surety of such administrator to file a bill to pre- vent persons who owed the estate from paying the administrator, and to compel the administrator to give the surety security. The court said payment by the debtors ought not to be enjoined, as they might become iasolvent, and the surety not having orig- inally demanded indemnity, could not demand it subsequently, but after the tim,e for settling the estate arrived, a bill might be filed by the surety to compel the distribution of the assets.^ A mortgagee who is also surety for the debt secured by the mort- gage, has no right to have the mortgaged premises sold before the debt becomes due, even though the same are in a state of ruin and decay, in consequence of storms, and are daily getting worse. The court said : " The security was taken with knowledge of the situation and character of the property, and of the risks to which it was exposed. It does not belong to the court to give a party better security than he elected to take, wliere there has been no fraud or mistake, nor any abuse or waste of the subject. I am not informed that there exists any precedent for a bill quia timet adapted to such a case. All the cases in the English law, in which even a surety may file a bill quia timet are those in which the debt was due from the principal debtor; and I do not know of any principle of equity that will justify us in giving aid to the surety before the debt is due, when the parties have not provided in their contract for such a case." " ^ § 193. Cases in which a surety may have relief in equity be- fore paying the debt. — A Surety or guarantor who holds a mort- gage on the property of his principal, may, after the maturity of the debt, and before paying it, have the mortgage foreclosed, and the proceeds thereof applied to the payment of the debt.' It has been held that for any sum which a surety for the price ■of land purchased by another has paid, or is liable to pay, on that account, he has an equity to be reimbursed or exonerated by a sale of the land, and to" that end he has a right to file his bill to prevent a conveyance to the purchaser by the vendor^ ' Delaney v. Tipton, 3 Hayw. (Tenn.) Bank, 15 Ohio, 253; DeCottes v. Jeffers, 14. 7 Florida, 284; MarkeU v. Eichelber- = Campbell O.Macomb, 4 Johns, Ch. ger, 12 Md. 78; Succession of Mont- R. 534, per Kent, C. gomery, 2 La. An. 469. ^Kramer v. Farmers' & Mechanics' WHEN SUEETY NOT ENTITLED TO INDEMNITT. 275 who has kept the title as a security for the purchase money.' Where the surety of an insolvent principal obtains without fraud the legal title to a fund belonging to Ms principal, equity will not compel him to surrender the legal title to his princif)al, so that the principal may dispose of the fund as he pleases; but if the surety has not paid the debt will authorize and compel him to apply the fund to its satisfaction.' Where a joint judgment was recovered against a principal and surety, and the principal had property subject to execution, on which tlie judgment was a lien, and sold such property to a person who was about to remove the same without the jurisdiction of the court, it was held the surety might by suit in chancery prevent the removal of the property.' Where a party was surety on a bond given by a deputy sheriff to the sheriff, and had taken a mortgage on personal property for his indemnity, and the sheriff and the deputy had collected money for which the sheriff' was sued, and the deputy had de- parted the jurisdiction, and the mortgaged property had come into the possession of a third party upon a pretended claim of right, which party was charged with an intention of removing it beyond the jurisdiction of the court, it was held that the court would restrain such third party from removing the property, and require bond and security for its forthcoming to answer the claim of the surety.* § 194. Cases in which a surety cannot recover indemnity from the principal. — The surety who pays a debt for which the principal is not liable, cannot generally recover the money so paid from the principal. Thus, where the surety in a bond against incumbrances paid the costs of defending two suits which the bond did not co^er, under the mistaken belief that he was liable therefor, it was held he could not recover the same from his prin- cipal.' So, where in an action of replevin, a bond with surety is filed by the plaintiff, and possession of the property is obtained by him, and afterwards the suit is dismissed by agreement of the parties, the plaintiff agreeing to pay the defendant a certain sum, but no judgment is rendered, if the s&rety afterwards, without the request of the plaintiff, pays the amount agreed to be paid to the defendant, he cannot recover the same from his principal, as the ' Smith V. Smith, 5 Ired. Eq. (Nor. = Anderson v. "Walton, 35 Ga. 202. Car.) 34. * Outlaw v. Reddick, 11 Ga,. 669. "McEnight v. Bradley, 10 Rich. Eq. ' Bancroft v. Abbott, 3 Allen, 524. (So. Car.) 557. 276 EIGHTS OF SUEETT AGAINST PEINCIPAL. payment is, in such case, a voluntary one on the part of the surety.^ Where a county court borrowed money without any legal authority so to do, and the plaintiff became the county's surety on the bond for the borrowed money, a part of which Le had since been compelled to pay, it was held that such plaintiff had no right to call upon the county to reimburse him for the amount already paid, or to exonerate him from the payment of the balance remaining unpaid. The county was not in any man- ner bound to the creditor, and could not be to the surety." Where a surety paid a debt after personal property of the prin- cipal sufficient to satisfy the debt, had been levied upon, it was held, he could not recover indemnity from the princi- pal. 'The levy was prima facie, a satisfaction of the ' debt, and the surety had paid a debt which the principal had already paid.° A surety being imprisoned on account of the debt of two principals, agreed with one of them that he would pay one-half the debt if such principal would pay the other half, and this was done. The surety then sued both principals for indemnity.' Held, he could not recover from the one with whom he had made the agreement. The implied presence of indemnity which the law would have raised was superseded by the express contract.* But it has been held that an agreement by a surety that he will surrender a note of the principal, if the principal will procure his release from his obligation as surety, is void for want of consideration, the ground of the decision being that the prin- cipal was bound to indemnify the surety, and, in procuring his release, he had only done what he was under a legal obligation to do.° The master of a vessel, as principal, together with a surety, entered into a bond that the vessel should not take any slave from one of the Bahama Islands. A slave concealed himself in the vessel and was taken to New York, where the surety filed a bill against the principal for a ne exeat and indemnity. Held, the hill could not be sustained, as it was not certain that either principal or surety was liable, and the Court would never lend its aid to enforce a forfeiture." Where a surety buys a judgment against ' Hollinsbee ». Ritohey, 49 Ind. a contrary effect, see Clark v. Bell, 8 261. Humph. (Tenn.) 26. ^ Davis V. Board of Comm'rs, 72 Nor. * Duncan v. Keiffer, 3 Bin. (Pa.) 126. Car. 441; Davis v. Commissioners of 'Ritenour v. Mathews, 42 Ind. 7. Stokes Co. 74 Nor Car. 374. « Gibbs v. Mennard, 6 Paige Ch. R. "Brown v. Kidd, 34 Miss. 291. To 258. ASSiaNMBNT OF CLAIM AGAINST PEINCIPAL. SET-OFF. 277 himself and his principal in the name of another person, he can- not recover indemnity from the principal without first satisfying the judgment. He may either proceed upon the judgment or satisfy the judgment and sue the principal for money paid, but he cannot do both.^ § 195. Set-off — Surety may bid at execution Sale of principal's property — Surety may assign his claim against the principal, etc. — In a suit by administrators of an insolvent estate against one wlio was surety in a note for the decedent, such surety is en- titled to set off a payment by him of such note, although the payment was made after the institution of the suit by the ad- ministrators against him. It is not like a claim brought by a party after suit is brouglit against him, for although the surety's right to indemnity from the principal was not perfect till he paid the debt, yet it was " founded upon a contract which existed be- fore.'" If the surety for a debt pay the same before it is due, the payment will, after the debt has become due, but not before, be a legal set-off against a note of the surety, payable to the princi- pal and held by him.' "Where a surety who had not paid the debt filed a bill against his principal, alleging that the principal was about to remove from the State and carry with him all his property, and prayed for an injunction to prevent the removal, etc., it was held that, in the absence of any statutory provision on the subject, he was not entitled to relief.* It has been held that a surety, before paying the debt, may file a bill to set aside fraudulent conveyances made by his principal,' and the contrary has also been held.° A surety having property of his principal in his hands, may surrender the same on an execution against his principal, and may purchase the same at the sale under the ex- ecution,' and he may so piirchase, although the judgment is ren- dered against him and his principal jointly.' But where a prin- cipal debtor, with money sufiicient to pay the debt in his pocket, suffered the property of his surety to be sold on an execution ' Hodges V. Armstrong, 3 Dev. Law ' Taylor v. Executor of Heriot, 4 Des. (Nor. Car.) 253. Bq. (So. Car.) 227. ' Beaver v. Beaver, 28 Pa. St. 167, « Williams v. Tipton, 5 Humph, per Lewis, J. To a contrary effect, see (Tenn.) 66. Walker ». McKay, 2 Met. (Ky.) 294. 'Horsefield ». Cost, Addison (Pa.) 'Jackson v. Adamson, 7 Blackf. 152. (Ind.) 597. . » Carlos v. Ansley, 8 Ala. 900. *Buford V. Francisco, 3 Dana (Ky.) 278 EIGHTS OF S0EETY AGAINST PEINCIPAL. against him, and tlie surety and himself became tlie purchaser, it was held to be doubtful whether even at law such sale, as against the surety, was not a mere nullity, and that in a court 6f equity such a purchaser would not be allowed to set up a title thus ac- quired against his surety.^ A bond given by an executor (who had been appointed executor by the will but had not given bond) for the payment to his surety of one-half his commissions from time to time, as they may be allowed, in consideration of his consent- ing to become such surety, is a valid instrument. It is not an agreement to pay money in order to obtain an appointment, but a legitimate means of carrj'ing out the wishes of the testator.^ A principal executed a deed of trust to secure certain debts, among them one on which there was a surety. The surety had to pay the debt, and assigned all his interest in the deed of trust to a third person. Held, such third person might enforce and have the benefit of the deed of trust.' A surety who has two indem- nities may usually resort to either, at his option.* § 196. When insolvent principal cannot collect debt due him by surety — Verbal guarantor ■who pays debt may recover indemnity — Other cases. — A principal who is insolvent cannot collect a debt which the surety owes him, without first indemni- fying the surety. " A surety has in respect to his liability the rights of a creditor as against his principal; and upon the insol- vency of the principal debtor he may retain any funds belonging to such debtor, by way of indemnity against his liability; other- wise a surety in such a case would be wholly without remedy when the plainest principles of justice are in his favor." ° And the assignee of a judgment obtained by the principal against the surety will in such case stand ^n no better position than the principal." An executor being surety for his testator, paid the debt after the testator's death. Held, he had a right to retain this debt the same as he would have a right to retain any other debt of equal degree due by the testator to him.' One who has verbally guarantied the debt of another at his request, may pay ' Perry v. Yarborough, 3 Jones Eq. ^ Abbey v. Van Campen, 1 Freem. {Nor. Car.) 66. Ch. R. (Miss.) 273. ^ Culbertson v. Stillinger, Taney's ' Williams v. Helme, 1 Dev. Eq. Decisions (Campbell) 75. (Nor. Car.) 151. *York». Landis, 65 Nor. Car. 535. 'Boyd v. Brooks, 34 Beavan, 7; * Muller V. Downs, 94 United States, contra, Anonymous, Godbolfc, 149. 444. TAILUEE OF OONSIDBEATION. rEArDTJLBirr SCHEME. 279 the same and recover indemnity from his principal, and the Stat- ute of Frauds will be no defense in such case, although it would he a defense to an action on the guaranty. The contract of guar- anty was not void, and the guarantor had a right to perform his parol agreement.* If the surety, on a note given by an infant for necessaries, pay it, he may recover indemnity from the infant. " If the infant is not liable on the note, as he would not be if he elected to avoid such liability, an assumpsit upon the delivery of the goods must be considered as subsisting against him, and tlie note of the surety be regarded as collateral security for the paj'- ment." As long as a judgment against the principal can be en- forced in any way, either by scire facias or action of debt, the payment of such judgment by a surety is not voluntary, and he may recover indemnity' from the principal. ° § 197. Surety on note who pays ■without notice of failure of consideration, may recover indemnity — When surety, -who has joined in fraudulent scheme with principal, may recover indem- nity — Other cases. — A payment made by a surety in compro- mise of his supposed liability upon a disputed claim against him and his principal, may be recovered by the surety from the prin- cipal if it turns out that there was an actual liability, and the principal has or is entitled to the benefit of the payment in dis- charge of so much of the original claim against him.' A surety, who without notice of the failure of consideration of a note, pays it after it is due, may, notwithstanding such failure of considera- tion,' recover indemnity from the principal.' After judgment against the surety in a replevin bond, he paid the judgment and sued his principal for indemnity. The principal set up that he had no title to the property replevied, and the surety knew it at the time, and the replevin was sued out by collusion between him and the surety to get the property, and that they were joint tort feasors and neither could recover from the other. Held, no de- fense. The court said: " If the giving of the bond was a fraud it was one of a singular character, for it indemnified the intended victim. This suit is not brought npon any illegal contract." ° 'Beal V. Brown, 13 Allen, 114. 'Gasquet v. Oakey, 19 La. (Curry), 'Conn V. Coburn, 7 New Hamp. 76; see on this subject Gates «. Ren- 368. froe, 7 La. An. 569. " Randolph ». Randolph, 3 Randolph ■« Smith v. Rines, 32 Me. 177, per (Ya.) 490. Howard, J. * Bancroft v. Pearce, 27 Vt. 668. G80 EIGHTS OF StIEETr AGAINST PEmCIPAL. Where a bond with A as surety is given to the United States, and B is mentioned in the bond as the importer, and A pays the bond, he may maintain an action for indemnity against B, although in < fact a third person was owner of the goods. The claim of the United States was extinguished by the bond, and the surety has a right to sue the principal in such bond.' A princi- pal placed in the hands of his surety certain securities for his in- demnity. The surety paid a portion of the debts for which he was liable, and collected from the securities in his hands an amount as great as he had paid out, but he still remained liable for other debts of the principal. Held, he must apply the money so col- lected to indemnifying himself for the money already paid by him for the principal, and that he could not then sue the principal for indemnity." § 198. other cases as to rights of surety against principal. — If several parties sign a note as principals, and one of them pays it, he may sue the others for indemnity, and show by parol that they were principals, and he a surety. ° So, where two of three parties who signed a note, added to their names the word "sure- t^r," and one of them paid it, he may, in a suit for indemnity against the other, show that he was a principal, notwithstanding the addition to his name of the word " surety." * The same thing was held where a principal, during his minority, contracted a debt for which a surety gave his note; and after his majority the principal, on the bottom of the note, acknowledged himself hold- en as co-surety.' It has been held that the fact that after a note becomes due a new surety signs it, will not prevent the original surety, who afterwards pays the note, from recovering indemnity from the principal. The payment was not voluntary, the addition of the name of the new surety not annulling the original liabili- ty on the note." A husband and wifa owned real estate, each one half in fee, and made a mortgage to secure the debt of the hus- band, which was not properly acknowledged, and did not convey the wife's interest. Subsequently they made another mortgage to secure a debt of the husband to another party, which was duly acknowledged, and the mortgaged property was sold. Held, the ' Sluby V. Champlain, 4 Jolins. 461. * Apgar's Admr. v. Hiler, 4 Zab. '' Whipple V. Briggs, 30 Vt. 111. (N. J.) 812. ' Dickey t). Rogers, 19 Martin (La.) ^ Thompson v. Linscott, 2 Greenl. 7 N. S. 588. (Me.) 186. 'Cattpn V. Simpson, 8 Adol. & Ell. 186 STATUTE' OP LIMITATIONS. 281' proceeds should be applied, first to pay the last mortgage, and the overplus should be applied to reimburse the wife for her land so sold ; she being as to it the surety of her husband, and her equity as such surety being to have all the property mortgaged by her husband applied to pay the debt for which she was suret}"- before her property was touched.' If an official bond, given by a sher- iif and his sureties, be so worded as not to be joint and several, but joint only, a court of chancery is the proper tribunal to give the sureties relief against the estate of the sheriff after his death, upon their being compelled to pay a sum of money on account of the delinquency of such sheriff in his lifetime." It is not nec- essary for the principal to make the surety a party to a suit in chancery which he may bring to assert any equity he may have against the demand for which he and the surety are bound at law.' § 199. Statute of limitations, as between surety and princi- pal. — Ordinarily, the statute of limitations begins to run in favor of the principal, and against the surety who pays the debt, from the time of such payment, and not from the time when the debt became due, because until the surety has been compelled to make such payment, there is no breach of the implied promise of the principal to indemnify him.* "When a surety has paid money for the principal, part inside and part outside the statute of lim- itations, on account of the same debt, all payments outside the statute are barred thereby.* On a contract to indemnify a plain- tiff against costs, which he is afterwards called on to pay, the cause of action arises when he pays, and not when the costs are incurred, or the attorney's bill delivered to such plaintiff, and the statute of limitations, therefore, begins to run from the time of ' Johns. V. Reardon, 1 1 Md. 465. Minn. 59; Reid v. Flippen, 47 Ga. 273; ''Mountjoyt). Banks' Exrs. 6 Munf. MoLane v. Ragsdale, 31 Miss. 701; (Va.) 887. Rucks v. Taylor, 49 Miss. 552; Consi- 'Bently v. Gregory, 7 T. B. Mon. dine ». Considine, 9 Irish Law Rep. (Ey.) .368. 400. See, also, on this subject, Keller " Thayer u. Daniels, 110 Mass. 345 Burton v. Rutherford, Admr. 49 Mo- 255; Scott V. Nichols, 27 Miss. 94 Shepard a. Ogden, 2 Scam. (111.) 257 ^ Wesley Church v. Moore, 10 Pa. St, V. Rhoads, 39 Pa. St. 513. 'Davies v- Humphreys, 6 Moes. & Wels. 153; the contrary has been held where the principal was not notiiied of the payment of the first instalments; 273; BuUook v. Campbell, 9 Gill (Md.) see WUHams' Admr. v. Williams' 182; Walker v. Lathrop, 6 Iowa, Admr. 5 Ohio, 444. (Clarke) 516; Barnsbaok v. Reiner, 8 282 EIGHTS OF STJEETT AGAINST PEINCIPAL. such payment.' -A and B were sureties of C, and shortly after the debt became due, A paid it. Four years afterwards B paid A one-half the sum A had paid. All these payments were made without suit. After the statute of limitations had run from the time A paid, and before it had run from the time B paid, B sued for indemnity. Held, B's claim for indemnity was not barred by the statute. The cause of action of B against C accrtied at the time of the payment by B to A.^ Where a party upon whom a bill of exchange was drawn, paid it for accommodation of the drawer, and after the statute of limitations would have barred an open account, and before it would have barred a suit on the bill of exchange, he sued the drawer for indemnitj'', it was held he could recover, because he was entitled to subrogation to the rights of the creditor against the principal, and his claim was therefore on the bill of exchange. The court said: "The rights to which he is entitled to be thus subrogated, are those which the creditor had while the obligation of the contract subsisted, not such as he had after the debt has been paid. * The doctrine is that the payment entitles the surety to be subrogated to all the rights of the creditor. It was his right to sue upon the contract. The surety upon payment is subrogated to this right, and may in like manner maintain his action."' When a surety pays the creditor the amount of a judgment against him and the princi- pal, and the creditor assigns the judgment to the surety, he may avail himself of the judgment, and the statute of limitations will not apply to the judgment as it would to the implied as- sumpsit that would accrue to him upon paying off the judg- ment.* iCoUinge v. Heywood, 9 Adol. & 'Sublettv.McKinney, 19 Texas, 438, EU. 633. per Wheeler, J. ' Odlin V. Greenleaf, 3 New Hamp. ■• Morrison v. Page, 9 Dana (Ky. 270. 428. CHAPTER X. OF THE EIGHTS OF THE SUEETY OE GUAEANTOK AGAINST THE CEEDITOE AND THIED PEESONS. Section. Surety not discharged by lawl'ul act of creditor. Instances . 200 .How fraud of the creditor oper- ates on liabiKty of the surety . 201 Surety may avail himself of de- fense of usury . . . 202 Whether surety may avail him- self of set-off in favor of prin- cipal and against creditor . 203 Creditor not bound to exhaust securities put up by principal before suing surety. When surety without paying may enforce securities for the debt . 204 Surety may compel creditor to proceed against principal . 205 Cases holding that surety, by re- quest, and without suit, may compel creditor to proceed against principal . . . 206 Requisites of the request to sue . 207 Cases holding that the surety cannot by request alone accel- erate the movements of the creditor against the principal 208 Surety may make the same de- fense at law as in equity. Whether he must make his de- fense at law when sued at law 209 Whether surety having failed to make defense at law can have relief in equity . . , . 210 Section. If credifor lead surety to believe debt is paid, and surety is in- jured, he is discharged . .211 When surety not discharged, al- though he believe debt is paid 212 Rights of surety against third persons. Indemnity of surety 213 Surety entitled to benefit of col- laterals. Creditor not bound to notify surety, when . . 214 Surety not discharged because creditor tells him his signing is a mere matter of form. Other cases 215 Surety may defend suit against principal. How liability of sure- ty affected by fraud. Other cases 216 When surety cannot recover back money paid by him to creditor. Party who is indebted may be- come surety, and secure surety- ship debt to exclusion of other creditors. Other cases . . 217 Surety may enforce trust made for his benefit without his knowledge. Other cases . 218 When surety for a portion of a debt entitled to share in divi- dend of estate of insolvent principal. Other cases . . 219 § 200. Surety not discharged by lawful act of creditor — In- stances. — Under the general head rights of the surety against the creditor might properly be treated most of the grounds for the discharge of the surety, as it is an invasion of those rights (283) 284 EIGHTS OF SUEETY AGAINST CEEDITOE. which furnishes the grounds for such discharge. Separate chap- ters have, however, been devoted to an examination of the most important of those grounds, and it is proposed here to treat only of those rights of the surety against the creditor which do not properly fall under other subdivisions of this work. " A creditor discharges a. surety by any dealing or arrangement with the prin- cipal debtor without the surety's assent, which at all varies the situation, rights or remedies of the surety." ' But " the act of the creditor which injures the surety, or increases his risk, or ex- poses him to greater liability, which will operate as a discharge, must be some act which the law does not authorize or sanction, or the omission of some act specially enjoined by the law." " Thus, the fact that a creditor, after principal and surety are bound for a certain sum, lends the principal a much larger sum, and takes a bond Irom the principal for such larger sum, does not discharge the surety.' So, where the proprietor of a newspaper sold it, together with its press, type, good will, etc., and the purchaser gave notes with surety for the purchase money, and the vendor afterwards started in the same town another newspaper, which took so much patronage from the newspaper he had sold that the purchaser was unable to pay his notes, it was held the surety was not discharged, as the starting and carrying on of the new newspaper, there be- ing no agreement to the contrary, was a legal and permissible act on the part of the vendor.' Where a creditor, who was an attor- ney, obtained, as attorney for other creditors, an adjudication in bankruptcy against the principal judgment debtor, and thus prevented a lien from attaching on part of his property, it was held the surety was not discharged thereby. The act of the cred- itor was lawful, and even if it worked an injury to the surety, he could not complain.' A decedent directed by his will that all his real estate should be sold, and the proceeds divided among certain of his children. One of his daughters married A, and he purchased a tract of the decedent's land at the executor's sale, and gave a note, with B as surety, for the purchase money. The surety and all parties then expected that the note would be ' Per Lord Truro, C. in Owen v. Ho- ^ Stewart v. Barrow, 55 6a. 664, per man, 3 Macn. & Gor. 378; see, also, Warner, C. J. Watkins ti. Wortliington, 2 Bland's 'Eyre t>. Everett, 2 Russell, 381. Ch. R. (Md.) 509. If the surety con- * Rupp v. Over, 3 Brewster (Pa.) 133. Bent to the injurious act, he is not dis- ' Thornton v. Thornton, 63 Nor. Car. charged; Bums v. Parks, 53 Ga. 61. 211. FEAUD OF CEEDITOE. 285 paid by the distributive share of A's wife. She afterwards com- menced a suit for divorce against A, in which she was successful, and had most of her distributive share decreed to her. The note was not paid, and the surety claimed to be discharged, because the fund he had relied upon for payment had been diverted from its purpose. Held, he was not discharged, as the diversion of the fund was not the act of the creditor, but was the result of the wrong-doing of the principal.' § 201. Hov7 fraud of the creditor operates on liability of the surety. — If a surety is induced to become such by a fraud perpe- trated on him by the creditor, as by false representations as to material facts, that will be a good defense; but " the representa- tion to avoid the contract as to the surety, must be a fraud on him, as such, and in that character." ^ If the creditor intrusts the note of the principal and sureties to the principal for some fraudulent purpose, and consents that he shall make the sureties believe the debt is paid, and they are thus induced to forego any advantage they would otherwise have had, the sureties will be dis- charged. But it is otherwise if the note was intrusted to the principal for an honest purpose, and the creditor did not know of, or consent to the false representations.' On a composition between a debtor and creditor, they induced a third person to become surety for the payment of one-half the debt, by represent- ing to him that this was to be in full of all demands; and the debtor, in pursuance of a previous arrangement of which the surety was unapprised, gave his own note for an additional sum: Held, the note was void and could not be enforced against the maker, who was the principal debtor, on the ground that the taking of such note was a fraud on the surety, of which the prin- cipal might avail himself.' But where a party bought a team for $700, and reqiiested a surety to sign a note for $500 in payment for the same, and the seller, in answer to an inquiry by the surety, told him the price of the team was $500, and the surety thereupon signed the note, and the purchaser, without the knowl- edge of the surety, gave the seller a note for $200 in addition, it was held that this last note was binding on the purchaser. The court said : " The surety has no interest in the transaction between ' Ross V. Clore, 3 Dana (Ky.) 189. ' Admr. of Wilson -o. Green, 25 Vt. "Evans v. Keeland, 9 Ala. 42, per 450. Ormoud, J. * Weed v. Bentley, 6 Hill (N. T. ) 56. 286 EIGHTS OF S0EETT AGAINST OBEDITOE. the principal and creditor beyond his own indemnity. He is not supposed to stipulate or assume that the principal shall receive any specific benefit from the transaction, analogous to that which parties to a creditor's composition arrange for their common debtor. The principal stands in no relation of tutelage or wardship to the surety, that lays the foundation of any presumption that the lat- ter in assuming suretyship, is arranging an advancement or the like for the principal." ' A surety for the price of property bought by the principal, cannot usually set up as a defense that a fraud was perpetrated on the principal in making the sale, unless the principal himself repudiates the transaction. This is on the prin- ciple that the contract of the surety is accessory to the principal debt, and if the debtor himself admits the debt to be due, the surety cannot be permitted to deny it, for that would be to permit the principal to " retain the fruits of the contract, whilst the surety would avoid the performance of his obligation on the ground of its invalidity." " Tlie president and chief stockholder of a na- tional bank had caused it to be guilty of several acts prohibited by the banking law, and for which it might have been wound up. While the bank was in this condition he sold it^ and was in such sale guilty of other violations of the banking law, for which the bank might have been wound up. A third party, without the knowledge of these facts, became the surety of the purchaser on certain notes for part of the purchase price, and gave a mortgage on her property to secure the purchase money. The bank soon after failed, and the surety upon learning the facts filed a bill to obtain relief from the notes and mortgage. Held, the relief should be granted. It was urged that the purchasers did not seek to re- scind the sale, and that it would be inequitable to allow them to re- tain the property and discharge the surety. But the Court said that through the violation of law by the bank president, who was the creditor, the bank was rendered substantially worthless, and pro- ceeded : "Indeed, it may be deduced from settled principles in this country and. in England, in accordance with what is dis- tinctly afiirmed in the civil law, that the agreement of the surety is not binding where the bargain between the primary parties ' Mead v. Merrill, 30 New Hamp. = Evans v. Keeland, 9 Ala. 42, per'' 472, per Woods, C. J.; same thing re- Ormond, J.; Brown v. Wright, 7 T. B. affirmed. Mead v. Merrill, 33 New Monroe (Ky.) 396 Hamp. 437. USTJET A DEFENSE TO SUEETT. 287 out of which it springs is. contaminated by positive irregular- ities. * Having been induced to become surety in the purchase of a bank, when her principals and the seller without her know- ledge adopted terms and conditions which were illegal, greatly injurious to the bank, prejudicial to her interests and serving to impair lier chance of protection and indemnification, she ought not on applying for relief from her undertaking, to have the doors of the court closed against her, upon the objection that the seller and her principals have allowed the matter to stand. * Here we have positive illegality, a violation of public policy, and a fraud of a public nature which was adapted to operate, and did operate, against complainant with all the severity and mischief of a direct fraud upon her." ' § 202. Surety may avail himself of defense of usury. — The surety on a note may avail himself of the defense of usury to the same extent that the principal can. If it was otherwise, the principal would stand in a better position than his surety, and the surety could either not recover indemnity from the principal for the usury paid by him, or the statute against usury would be evaded." Principal and surety signed a replevin (stay) bond, and the principal paid large amounts of usurious interest at various times for extensions. Held, the surety might by a separate bill filed for that purpose, with or without the consent of the princi- pal, be allowed as credits on his bond the usurious interest paid by the principal." "Where a judgment was entered on a bond tainted with usury, of which usury the surety had no knowledge when he became bound, and the creditor filed a bill to subject equities of the surety to the payment of the judgment, it was held that the surety could not by cross-bill allege the usury and have relief asrainst it without a tender of the amount due in equity.* It has been held, that after a principal has been dis- charged in bankruptcy, a surety when sued for the debt cannot set off usury paid by the principal to the creditor on contracts other than tlie one sued on, and this upon the ground that by the terms of the bankrupt act all debts due the bankrupt 'Denison ». Gibson, 24 Mich, 187, 'Curtclier ». Trabue, 5 Dana (Ky.) per Graves, J. 80. ° Gray's Exrs. i\ Brown, 22 Ala. * Bank of Wooster v. Stevens, 6 262; Stockton v. Coleman, 39 Ind. 106; Ohio St. 262. Huntress v. Patten, 20 Me. 28; Wei- mer v. Shelton, 7 Mo. 237. 288 EIGHTS OF SURETY AGAINST CREDITOE. pass to his assignee.^ Where a surety, knowing a debt was usuri- ous, paid it, and tlie principal paid him by a transfer of proper- ty, and then sued the creditor to recover the usury, which he might have done if he had himself paid the usury in money, it was held he was not entitled to recover.' § 203. Whether surety may avail himself of set-off in favor of principal and against creditor. — As to whether a surety, when sued for the debt of his principal, can at law avail himself of a set-off existing in favor of the principal against the creditor, the cases do not agree, but the weight of authority is that lie may so avail himself of such set-off.' The reasoning upon which these decisions proceed, has been thus expressed: "Although by our statute proper matters for set-off are mutual demands only * yet it is not considered as conflicting with this rule to offset a note signed by a principal and his surety against a note running to such principal alohe; the debt in such case being considered as the debt of the principal." ' In an action at law against a principal and surety on a note, it has been held competent to re- coup the damages of the principal growing out of the contract to the same extent as if the note had been given by the principal and he alone were sued.^ The same thing has been held to be a good equitable defense to an action at law under a statute al- lowing equitable defenses to be made at law.® In debt on the bond of a city marshal, against the principal and sureties, it was held that the claim of the marshal alone against the city for ser- vices was admissible as a set-off, notwithstanding the fact that the bond was under seal.' Judgment was recovered by a credi- tor against a principal and surety, and the principal recovered a judgment against the creditor, who was insolvent. Held, the surety might, by suit in chancery, have the one judgment set off against the other, as the debts were in reality mutual, and equity would look beyond the form of the debt to the actual facts." A held the note of B, on M'hich C and D were sureties. ' Wbolfolk V. Plant, 46 Ga. 422. ■• Per Sargent, J. in Andrews D.Var- 'Whiteheadt'. Peck, 1 Kelly (Ga.) rell, 46 NewHamp. 17. 140. ' "Waterman i\ Clark, 76 lU. 428. ' ^Andrews!;. Varrell, 46 Ne-wHamp. ^Beehervaise r. Lewis, Law Rep. 7 17; Hollister v. Davis, 54 Pa. St. 508; Com. PL 372. Cole V. Justice, 8 Ala. 793; Bronaugh ' Concord v. Pillsbury, 33 New V. Neal, 1 Robinson (La.) 23; Concord Hamp. 310. V. Pillsbury, 33 New Hamp. 310. ^po^y^er v. Dana, 17 Vt. 518. CEEDITOE NOT BOUND TO EXHAUST SEOUEITIES. 289 A sued B and recovered a judgment, but for a less amount than lie claimed, in consequence, as lie alleged, of B's false swparing. A then swore out a warrant for the arrest of B on "a charge of perjury, and B fled the state. In consideration that A would drop the prosecution, B gave A the note of one Mills for $500, which was all the property B had. Held, that and J) might, by suit in chancery, have the note applied to the payment of the debt for which they were liable.' On the other hand, it has been- held that a surety cannot at law avail of a set-off recoupment or counter claim existing in favor of the principal against the cred- itor." This is put upon the ground that the principal has a riglit to bring a separate action for his claim against the creditor, and that he could not do this if the surety was allowed to set it up as a defense, and thus he might lose a much larger sum than that for which the surety was liable. It was, however, admitted in those cases, that the surety might have relief in equity by a suit to which the principal was a party. It has also been held that the creditor cannot at law set off a debt which he claims to be due him from a guarantor, against a debt which he owes such guarantor.' § 204. Creditor not bound to exhaust securities put up by principal before suing surety — ■when surety without paying may enforce securities for the debt. — According to the English law, •the creditor cannot be compelled, before proceeding against the surety, to exhaust a mortgage or other security which he may hold from the principal for the payment of the debt, although it is otherwise by the civil law.' The remedy of the surety is to himself pay the debt, and he will then be subrogated to, and may enforce, all liens held by the creditor for the payment of the debt. A creditor in IsTew Jersey, where the parties resided, took from B, the holder of a promissory note indorsed by the plaintiff, on a loan of money alleged to be usurious, a bond and mortgage,' which was, if valid, an ample security for the debt, and instead 'Breese». Schuler, 48 111. 329. 'Watson v. Sutherland, 1 Coopdr, .'Gillespie K. Torrance, 25 NewYork, Ch. R. (Tenn.) 208; Hayes «. Ward, 306; Lafarge v. Halsey, 1 Bosw. (N. 4 Johns. Ch. R. 123; Buck?!. Sanders, Y.) 17] ; Lasher B.Williamson, 55 New 1 Dana (Ky.) 187. See on same subject, York, 619. On same subject, see Poor- Gary v. Cannon, 3 Ired. Eq. (Nor, man v. Goswiler, 2 Watts (Pa.) 69, Car.) 64. See, also, Irick v. Black,. 2 'Morley v. Inglis, 4 Bing. (N. C.) C. E. Green (N. J.) 189. 58; Id. 5 Scott, 314. 19 290 EIGHTS OF SURETY AGAINST CEEDITOE. of resorting to the bond and mortgage, or to the principal, sued the plaintiff in New York on his indorsement. The plaintiif filed a bill to enjoin the suit at law till the bond and mortgage were exhausted in New Jersey, and it was held he was entitled to relief. The court held the law to be as above stated, and granted the relief solely on the ground that there was reasonable ground to believe that the bond and mortgage had been rendered frail and insecure by the illegal act of the holder of the note, and the court would not permit the surety to be forced to pay the money and then litigate this doubtful question with the maker of the bond and mortgage, as it was more equitable that the creditor should first litigate it.' "Where principal and surety have both mortgaged property for the debt of the principal, the surety is entitled to have the property of the principal sold first to satisfy the debt." When the principal is insolvent, the surety has, under certain circumstances, a right, before paying the debt, to file a bill to enforce a lien for its payment. This was held where a slave was sold under a decree of court and a lien retained for the pur- chase money, for which a surety also became bound, and the slave was levied on by other creditors:^ "Where Jand belonging to an •estate was sold and a lien retained on it for the purchase money:' And where certain persons had in their hands funds belonging to :a clerk of a court in his representative capacity.^ "Where a judg- ment had been rendered against principal and surety, and the principal was insolvent, it was held that a court of chancery would entertain jurisdiction of a suit brought by the surety for the purpose of reaching credits of the principal in the hands of third parties, and appropriating them in payment of the judg- ment, although the surety had not paid the debt." § 205. Surety may compel creditor to proceed against princi- pal. — It is settled by a long continued and unvarying current of authorities, that the surety may, by a suit in chancery, after the ■debt becomes due, and before he pays it, compel the creditor to ' Hayes v. "Ward, 4 Johns. Ch. E. (Nor. Car.) 395. To same effect, see 123. Green v. Crockett, 2 Dev. & Bat. Eq. " Neimcewicz v. Gahn, 3 Paige Ch. 390; Arnold v. Hicks, 3Ired. Eq. (Nor. R. 614; James v. Jacques, 26 Texas, Car.) 17; Egerton v. AUey, 6 Ired. Eq. 320. (Nor. Car.) 188. ' Henry v. Compton, 2 Head (Tenn.) ' Bunting «. Ricks, 2 Dev. & Bat. ■549. Eq. (Nor. Car.) 130. * Polk V. Gallant, 2 Dev. & Ba,t. Eq. « McConnell v. Scott, 15 Ohio, 401. SUEKTT MAT ACCELEEATE M0TEMENT8 OF CEEDITOE. 291 proceed to collect the debt from the principal, provided he indem- nify the creditor against loss from a fruitless suit against the principal.^ As the mere passive delay of the creditor in pro- ceeding against the principal, however long continued and hovf- ever injurious to the surety, vs^ill not ordinarily discharge him, this right to accelerate the movements of the creditor is of great importance. Even if the surety should suffer no injury by the delay, it is unreasonable that he should always have such a cloud as the debt of the principal hanging over him. It is likewise settled, that the surety may npon the terms of bringing the amount due into court, compel the creditor to prove the debt in bankruptcy against the estate of the principal." § 206. Cases holding that surety by request and -without suit may compel creditor to proceed against principal. — As to wheth- er the surety may without suit accelerate the movements of the creditor against the principal there is great conflict of authority. There is a numerous and well considered class of authorities which hold that if, after the debt is due, the surety, verbally or in writing, request the creditor to sue the principal, who is then solvent, and the creditor fail to do so, and the principal after- wards becomes insolvent, the surety is thereby discharged. The reasoning upon which these decisions are founded is that equity will compel the creditor to sue the princip al and make the money from him, because he is primarily liable for it, and it is the duty of the creditor to get payment from him if possible. If it is his duty to do this, there is no reason why he should not be com. pelled to do it upon the request of the surety i/n pais, as well as by filing a bill in chancery against him. Where the creditor does any act injurious to the surety, or omits to do an act when required which equity and his duty to the surety enjoin it upon him to do, and the omission is injurious to the surety, in either case the surety will be discharged. To delay under such circum- stances is against conscience, and in Its effect is.a fraud npon the ' RanelaDgh :?. Hays, 1 Vernon, 189; 131; Rees ». Berrington, 2 Ves. Jr. Hays V. Ward, 4 Jolins. Ch. R. 123; 540; Huey v. Pinney, 5 Minn. 310; Antrolus v. Davidson, 3 Merivale, 569- Kent ». Matthews, 12 Leigh (Va.) 573; 79; King v. Baldwin, 2 Johns Ch. R. Rice v. Downing, 12 B. Mon. (Ky.) 554 ; Lee v. Rook, Moseley, 318 ; 44; In re Bahoock, 3 Story, 893. Whitridge v. Durkee, 2 Md. Ch. R. * Wright «. Simpson, 6 Vesey, 714; 442; Nishet v. Smith, 2 Brown Ch. Ex parie Rushforth, 10 Vesey, 409; Ca. 579; Hogaboom v. Herriok, 4 Vt. In re Bahcook, 3 StoTy, 398. 292 EIGHTS OF SUEETT AGAINST CEEDITOE. surety.' The fact that there was a statute providing for the discharge of the surety, if the creditor failed to sue, upon being required in writing by the surety to do so, has been held to make no differ- ence, the statute being held to be merely cumulative, and not to impair the right of a surety to be discharged upon a verbal re- quest." In order that the request may have this effect, the prin- cipal must, at the time thereof, be solvent and able to pay all his debts, according to the ordinary usage of trade.* The request need not be accompanied by an offer to pay the expenses of the suit, unless the creditor expressly puts his refusal to sue upon this ground.* If the creditor have a mortgage on property of the principal for the security of the debt, which is ample for that purpose when the debt becomes due, and refuse after request by the surety to foreclose the mortgage till the property greatly de- preciates in value, it has been held that the surety is thereby dis-, charged.' It has also been held that if the creditor, after request 'Pain V. Packard, 13 Johns. 174; King V. Baldwin, 17 Johns. 384, re- versing the decision of Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. -R. 554, by the casting vote of Lieut. Gov. Taylor, a layman. The two first named cases are the leading authori- ties on the view of the subject which they hold. They have been followed, .or decisons to the same effect, rendered in Manchester Iron Manf. Co. t. Sweet- ing, 10 Wend. 163; Hempstead ». Watkins, 6 Ark. (1 Bug.) 317; Mar- tin V. Shekan, 2 Colorado, 614; Hau- 'Cock V. Bryant, 2 Yerg. (Tenn.) 476; Cope V. Smith Bxr. 8 Serg. & Rawle (Pa.) 110; Hopkins v. Spurlook, 2 Heisk. (Tenn.) 152; Thompson v. Wat- son, 10 Yerg. (Tenn.) 362; Colgrove». ■ Tallman,67N. Y. 95; Bruce v. Ed- wards, 1 Stew. (Ala.) 11. See Trimble V. Thome, 16 Johns. 152, as to applica- tion of this principle to the indorser of a promissory note. 'Thompson r. Watson, 10 Terg. (Tenn.) 362; Strader v. Houghton, 9 Port. (Ala.) 834; Herbert v. Hobbs, 3 Stew. (Ala.) 9; Goodmans. Griffin, 3 Stew. (Ala.) 160. , sHerrick v. Borst, 4 Hm (N.Y.)650. To similar effect, see Huffman v. Hul- bert, 13 Wend. 377; Merritt v. Lin- coln, 21 Barb. 249; Field v. Cutler, 4 Lans. (N. Y.) 195. * Wetzel V. Sponsler, 18 Pa. St.460. ' Remsen v. Beekman, 25 New York, 552; where the doctrine of King v. Baldwin, although previously ques- tioned by judges in the same State, was approved on principle, and followed as authority. If the principle of King v. Baldwin is correct, it would seem clear that the above decision is also correct. The precise opposite has, however, been held, in Branch Bank at Mont- gomery ». Perdue, 3 Ala. 409, and in Haden v. Brown, 18 Ala. 641, by a court which held the doctrine of King V. Baldwin. The same court held that after judgment against principal and sureties, the sureties were not dis- charged by the failure of the creditor, upon request, to levy on the property of the principal, and the subsequent insolvency of the principal: Buckalew V. Smith, 44 Ala. 638; and also that a lessor was not bound to distrain prop- erty of the lessee upon the request of the surety; the distinction seeming to be made between forcing the creditor EEQUIS'lTES OF BEQUEST TO SUB. 293 by the surety, fail to present his claim against the estate of an insolvent piincipal, and the debt is thereby lost, the surety is re- leased pro tanto} ■ A guaranty given by the defendant was to be void if the plaintiff should omit to avail himself to the utmost of any security he held of K. He held a bill drawn by R, and accepted by an insolvent, still in prison. Held, he was not bound before suing on the guaranty to prosecute the insolvent." A was indebted to B for one year's rent of certain premises, for which B had lost his landlord's lien, by lapse of time. A was also in- debted to for rent for the current year, for which had a lien if he chose to enforce it, and for which last rent D was surety. The property of A was levied on by execution at the suit of third parties, and D notified C to file his claim for rent with the sher- iff, by which the lien would have been preserved, and the debt made. C refused to do this, and the debb was lost. Held, the surety D was discharged." § 207. Requisites of the request to sue. — The notice to the creditor to sue, which will discharge the surety if not complied with, should be so dear and distinct that the meaning of the surety can be at once apprehended without explanation or argu- ment.* A request to " push (the surety) and keep pushing him," when it is understood by both parties to be a request to collect the debt by legal means, is sufficient. A request to collect the money by dunning or in any other way than by legal proceedings, is not sufficient.' A notice, by the surety in a note to the holder to proceed generally, and forcing him Hoch, 25 Pa. St. 525; Baldwin d. Gor- to proceed in a particular way against don, 12 Martin (La.) 0. S. 378. particular property: Brooks w. Carter, ' McGoUum «. Hinkley, 9 Vt. 143. 36 Ala. 682. To the same effect as the The general doctrine of King v. Bald- last case, see Ruggles v. Holden, 3 win is repudiated by the same court: Wend. 216. It has also been held that Hogaboom ». Herrick, 4 Vt. 131 ; Hick- a creditor is not bound, upon request, ok v. Fanners' & Mechanics' Bank, 35 to arrest a principal who is insolvent, Vt. 476. but had friends who would probably ^ Musket ». Rogers, 5 Bing. (N. C.) have paid the debt if he had been ar- 728; Id. 8 Scott, 51. rested : Warner v. Beardsley, SiWend. * Lichtenthaler v. Thompson, 13 194. It has been held by another Serg. &. Ra-wle (Pa.) 157. court, that the creditor was not bound ' WoUeshlare v. Searles, 45 Pa. St. at the request of the surety to levy 45; Shimer v. Jones, 47 Pa. St. 268; on property of the principal: Newe!l Conrad v. Foy, 68 Pa. St. 381. V. Earner, 4 Howard (Miss.) 684. On ''Singer v. Troutman, 49 Barb. (N. this subject see, also, Bank v. Kling- Y.) 182. ensmith, 7 Watts (Pa.) 523; Weiler v. 294: EIGHTS OF SUEETT AGAINST OEEDITOE. "to collect it, as lie would not stand bail any longer," is sufficient.^ It has been held that the request to sue must be accompanied by an explicit declaration that unless suit is brought the surety will no longer remain liable. Therefore, where a surety wrote to a creditor, as follows: " T therefore, notify you that I will be no longer considered bail. Please take another bond from him or payment," it was held the request was not sufficient.^ The request to sue a note when due, avails nothing if made before the note is due. The request must be made at the time of, or after, the maturity of the obligation.* The surety may make the request by agent, and if he has a general agent who transacts all his business, it is the duty of such agent to make such request, without any special directions. Where the creditor is not in the neighborhood, and has left the note in the hands of an agent for collection, the request may be made of such agent.^ The request may be made of the counsel of an absent or non-resident plaintiff in a judgment.* Where a married woman is the owner of a note, a request made of her husband to put the note in suit will not avail the surety. The husband is not ipso facto the agent of the wife in that regard.* It has been held that the request to sue would not avail the surety if the principal lived in another county.' But it has also been held that the surety might avail himself of such request when the .principal lived in another State, but had property ii^ the State in which the creditor resided, which might have been subjected to the payment of the debt.* Where the creditor has failed to sue upon request, it has'beeu held that the burden of proof is on him to show, in a suit against the surety, that the money could not have been col-, lected if suit had been brought against the principal when the request was made.° § 208. Cases holding that the surety cannot, by request alone, accelerate the movements of the creditor against the principal. — 1 Stickler v. Burkholder, 47 Pa. St. » Thomas v. Mann, 28 Pa. St. 520. 476. 6 Shinier v. Jones, 47 Pa. St. 268. " Greenawalt v. Kreider, 3 Pa. St. ' Alcorn v. The CommoDwealih, 66 261. To similar effect, see Brie Bank Pa. St. 172. V. Gibson, 1 Watts (Pa.) 143. s jjancock v. Bryant, 2Terg. (Tenn.) 8 Hellen v. Crawford, 44 Pa. St. 105. 476. " Wetzel u. Sponslers' Exrs. 18 Pa. 'Stickler v. Burkholder, 47 Pa. St. St. 460. See, also, on this point, 476. Geddis v. Hawk, 10 Serg. & Rawle (Pa.) 33. S0EETY CANNOT BX REQUEST FOECE CEEDITOB TO SUE. 295 The great majority of cases on the subject hold, in the absence of any statutory provision, that if after the debt is due the surety request tlie creditor to sue the principal, who is then solvent, and the creditor fails to do so, and the principal afterwards becomes insolvent, the surety is not thereby discharged. The ground upon which these decisions rest is, that the principal and surety are both equally bound to the creditor, who may have taken a surety in order that he might not have to sue tbe principal. If the surety desires a suit brought against the principal, be may him- self pay the debt, and immediately sue the principal. The con- trary doctrine is an innovation, and was unknown to the common law.^ The surety on the bond of a note clerk of a bank was in- formed by the bank of an embezzlement committed by the clerk, and before paying any portion of the amount embezzled, requested the bank to cause the arrest of the clerk, which it refused to do : Held, the surety was not, in the absence of any indication of a fraudulent connivance at the escape of the clerk, discharged thereby.' Where the holder of two notes made by the same party commenced an action against him, declaring on the common counts for a greater sum than the aggregate of both, notes, and attached property sufficient to satisfy botb, but did not intend to include in the action one of tbe notes, which was signed by a surety, and there were subsequent attachments of the same prop- erty by other creditors, it was held that the plaintiff was not bound to comply with the request of the surety, to put into the action the note signed by him, even though he offered to indemnify the 'Jenkins v. Clarkson, 7 Ohio, 72; 476; Hogaboom ». Herrick, 4 Vt. 131; Carr v. Howard, 8 Blackf. (Ind.) 190; Gaston v. Dunlap, Richardson Eq.Cas. Halstead ». Brown, 17 Ind. 202; Exrs. (So. Car.) 77; Croughton ». Duval, 3 of Dennis v. Rider, 2 McLean, 451; Call (Va.) 69; Boutte v. Martin, 16 Davis ». Huggins, 3 NewHamp. 231; La. (Curry) 133; Taylor v. Beck, 13 Pickett V. Land, 2 Bailey Law (So. 111. 376. On same subject, see Huey Car ) 608; Nichols v. McDowell, 14 B. v. Pinney, 5 Minn. 310; Bizzell v. Mon. (Ky.)5; Frye «. Barker, 4 Pick. Smith, 2 Dev. Eq. (Nor. Car.) 27; 882; Stout V. Ashton, 5 T. B. Mou. Thompson «. Bowne, 39 New Jer. Law (Ky.)251; Gage v. Mechanies' Natl. (10Vroom)2; Hogshead d. Williams, Bk. of Chicas-o, 79 111. 62; DiUou v. 55 Ind. 145; Harris v. Newell, 42 Wis, Holmes, 5 Nebraska; 484; Inkster v 687; Pintard v. Davis, 1 Spencer (N. First Natl. Bk. of Marshall, 30 Mich. J.) 205; affirmed Pintard u. Davis, 1 143; Langdon v. Markle, 48 Mo. 357; Zabnskie (N. J.) 205. Hartman v. Burlingame, 9 Cal. 557; '^ Louisiana State Bank jj. Ledoux, 3 Dane v. Corduan. 24 Cal. 157; Hickok La. An. 674. V. Farmeis' & Mechanics' Bank, 35 Vt. 296 EIGHTS OF STJEETY AGAINST CEEDITOE. plaintiff for so doing.* Much may be said in favor of both views of this question concerning the right of the surety, by request and without suit, to accelerate the movements of the creditor against the jjrincipal. The objection that the rule permitting it is an in- novation, might, with equal propriety, be urged against most of the causes which are now recognized as entitling the surety to his discharge. These causes are the outgrowth of equitable prin- ciples inherent iii the relation of principal and surety; and sev- eral of the most important of them, which are now nowhere dis- puted, have been established by decisions of the courts during the present century. The rule under consideration was first an- nounced by the Supreme Court of New York, in the year 1816, and is a doctrine recognized only by some of the American courts, no decisions to a similar effect having been made by the courts of England. Although repudiated by a majority of the courts of the Dnited States, the rule is supported by strong equities, and is in harmony with the general well recognized rules governing the relation of principal and surety. Recognizing the justice and equity of this rule, the legislatures of many of the United States have, by statute, provided that the surety may, by notice, require the creditor to proceed against the principal. § 209. Surety may make the same defense at law as in equity — Whether he must make his defense at law -when sued at law. — " The subject of equitable relief in behalf of sureties is one of original jurisdiction in a court of chancery. The peculiar rights of a surety originated in, and are exclusively the outgrowth of, equity. Formerly it was held in several instances that the remedy of the surety was only in equity, and could not be made avail- able in courts of common law. But, it is now held as a general rule, that the liability of sureties is governed by the same prin- ciples at law as in equity. And probably with few exceptions the same considerations which are sufficient in equity to discharge the surety, will be available for the same purpose at law." ' On 1 Adams Bank i). Anthony, 18 Pick. v. Pierce, 82 New Hamp. 560; State 238. Bank v. Watkina, 6 Ark. (1 Eng.) 123; i^Perlsham, J., in Viele v. Hoag, Smith v. Clopton, 48 Miss. 66; The 24 Vt. 46. To same effect, see Heath People v. Jansen, 7 Johns. 332; Shel- V. Derry Bank, 44 New Hamp. 174; ton v. Hurd, 7 Rhode Is. 403; Max- Samuell v. Howarth, 3 Merivale, 272; well v. Connor, 1 Hill Eq. (So. Car.) Baker v. Briggs, 8 Pick. 122; Rogers 14; Wayne v. Kirby, 2 Bailey Law V. School Trustees,_ 46 111. 428; Wati-iss (So. Car.) 551; Springer v. Toothaker, DEFENSES OF SUEETY AT LAW AND IN" EQUITY. 297 the ground that the sixrety can make the same defense at law that he can in equity, it has been held that when sued at law the surety must avail himself of such defenses as he can there make, and if he does not, that he cannot afterwards avail himself of such defenses in equity, unless he was prevented from so doing by fraud, accident or the wrongful act of the other party, without any negligence or other fault on his part.' On the other hand it has been held that if a surety when sued at law does not there make his defense, and judgment is recovered against him, he can afterwards come into equity and have relief. The reason is that the discharge of a surety was a matter of original equity juris- diction, and the fact that courts of law now entertain jurisdic- tion of the matter, does not oust equity of its original jurisdic- tion. " Where the jurisdiction of courts of chancery and courts of law is concurrent in consequence of courts of law having en- larged their jurisdiction by their own acts, or of its having been enlarged by act of the legislature without prohibitory words, the party may make his election as to the tribunal in which he will make his defense." ' ' § 210. Whether surety having failed to make defense at la-w, can have relief in equity. — It has been held that where there is no question that the defense of a surety can be made at law, then it must be made tliere, and the decision of that tribunal is con- .clusive. " But if it be doubtful whether a court of law can take cognizance of the defense, and there exists no doubt of the juris- diction of a court of equity, and if in such a case a defendant at law under the influence of such, doubt omits to make his defense, or if he bring it forward and it be overruled under the idea that it is not a defense at law, it is not granting a new trial for a court of equity to afford relief, notwithstanding the trial at law." ' A surety being sued at law might have made his defense there, but 43 Me. 381 ; Contra, Exr. of McCall v. erson v. Commissioners of Ripley Co. Admr. of Evans, 2 Brevard, (So. Car.) 6 Ind. 128. 3. ' Hempstead v. Conway, 6 Ark. (1 ' Vilas ». Jones, 1 New York, 274; Eng.) 317, per Oldham, J.; Wayland Schroeppell v. Shaw, 3 New York, 446; v. Tucker, 4Gratt.[(Va.) 267; Harlan i7. Ramsey «. Perley, 34 111. 504; Ken- Wingate, 2 J. J. Marsh (Ky.) 138. ner ». Caldwell, Bailey Bq. Cas. (So. Smith v. Crease 's Exr. 2 Cranoh C. C. Car,) 149; Maxwell u. Connor, 1 Hill 481. On this subject, see, also, Sailly ». Eq. (So. Car.) 14; M'Grew v. Tom- Elmore, 2 Paige Ch. R. 497. beckbee Bank, 5 Port (Ala.) 547; Her- ^King v. Baldwin, l7 Johns. 384, bert V. Hobbs, 3 Stew. (Ala.) 9; Dick- per Spencer, C. J. To similar effect, EIGHTS OF SUEETY AGINST CEEDITOE. did not, and pending such suit filed a bill in chancery for discov- ery, and setting up his defense as surety, and it was held he was entitled to the relief sought by his bill.' It has been held, that if a surety is sued at law and makes an unsuccessful defense there, he cannot afterwards set up the same defense in equity." But it. has also been held, that if he sets up one defense at law and is unsuccessful in that he may afterwards set up another defense in equity.' Judgment was recovered against principal and surety, and the creditor afterwards gave time to the principal. The creditor afterwards sued the principal and the surety on the judgment, and the surety defended on the ground that the giving of time discharged him, but was unsuccessful in his defense, and judgment was rendered against him. He then filed a bill to restrain the second judgment at law, setting up the same matter of defense that he had urged at law, and it was held that he was entitled to relief. This was put upon the ground that after the first judgment at law, the relation of principal and surety was so far merged, that the surety could not make his defense at law.'' Much of the confusion of the cases on this sub- ject has arisen from the fact that originally most of the defenses of a sxirety had to be made in equity, and could not be set up as a defense to a suit at law and the rule permitting the same de- fense to be made at law that would avail the surety in equity, was adopted by various courts at different times, and is not even . now fully recognized by all of them. Where the surety can and does make his defense at law, the great weight of authority is that the decision of the court of law is conclusive on him. The weight of authority also is that if he can make his defense at law, but does not, and judgment is rendered against him, he can- iTot afterwards have relief against such judgment on any ground which he might have relied on the suit at law. "Where the case is such that a court of law will not entertain his defense, then if he had a good equitable defense, he will be relieved from the see Rath bone ». Warren, 10 Johns. 'Viele d. Hoag, 24 Vt. 46. 587. It has, however, been held, that ^ Cooper v. Evans, Law Rep. 4 Eq. a party who failed to make his defense Cas. 45. at law because he was advised and 'Davies v. Stajnbank, 6 De Gex. believed that he could not do so, could Macn. & Gor. 679. not afterwards have relief in equity; * Dunham ». Downer, 31 Vfc. 249. Dickerson v. Commissioners of Ripley County, 6 Ind. 128. IF CKEDITOE MISLEAD SHEET Y HE IS DISCHAEaED. 299 judgment hj a court of chancery. A sheriff received certain claims for collection, and collected them and paid the proceeds over to the person entitled to them, but did not take up his re- ceipt given for the claims. The sheriff died, and his receipt came into the hands of the successor of the person who gave the claims to liim for collection, and he sued the sureties of the sheriff for the amount of the claims, and recovered, and they paid the judg- ment. Afterwards, learning the facts, they filed a bill to have the money they had paid returned to them, and it was held that they, ' having been guilty of no laches, and not knowing of their de- fense when the judgment was rendered, were entitled to relief.^ § 211. If creditor lead a surety to believe debt is paid and surety is injured, he is discharged. — If the creditor tells the surety that the debt is paid when in fact it is not, and the surety in con- sequence thereof releases a security or omits to secure himself, or is in any manner injured thereby, the surety is discharged.^ And this is true, even though the creditor is honestly mistaken in the statement which he makes.^ The creditor, having caused the in- jury, should suffer it. The same thing was held where the surety on a sealed note was given by the payee a release not under seal, and induced to believe for several years, and until the principal became insolvent, that he was discharged.* So, where, after joint judgment against principal and surety, the «reditor, by his statements to the surety, led him to believe the debt was paid and he would not be troubled about it, and these statements were made under such circumstances as to justify the surety in be- lieving and acting on them, and he was thereby induced to ab- stain from securing himself, when he might easily have done so, until the principal became insolvent, it was held he was dis- 'charged.' The surety on a note applied to the holder, and told him that if he had to pay the note he wished to do it soon, as he could then secure himself ; to which the holder replied that he would look to the principal for payment and he need give him- self no trouble about it. The surety took no steps in the matter, 'Hickman v. Hall, 5 Littell (Ky.) ^Baker ». BriRgs, 8 Pick. 122; Car- 388. penter v. King, 9 Met. (Mass.) 611. ^Bank v. Haskell, 51 New Hamp. *Teague v. Russell, 2 Stew. (Ala.) 116; High V. Cox, 55 Ga. 662; Waters 420. V. Creagh, 4 Stew. & Por. (Ala.) 410; ^Eoberts v. Miles, 12 Mich. 297; to Thornburgh v. Marden, 33 Iowa, similar effect, see White v. Walker, 81 380. 111. 422. 300 EIGHTS OF SUEETT AGAINST CEEDITOE. but it did not appear that the principal became insolvent. Held, the surety was discharged.' The holder of a promissory note, believing it was paid in a trade he supposed he had made with the prin- cipal, so informed the surety, who knew nothing to the contrary for five years. It was not clear whether the circumstances of tl\e principal had become better or worse. Held, the surety was dis- charged, and that it made no difference what the circumstances of the principal had become. The court said the language of the code was not only " injures the security," but also " exposes him to greater liability or increases his risk." The surety had a right to notify the creditor, or to pay the debt himself and sue the principal; he might have obtained additional security, etc. All these he was deprived of and lulled to sleep for five years. If the principal remained solvent, the creditor was not injured, but the surety was discharged." § 212. When surety not discharged although he believe debt is paid. — If a note be delivered up to be canceled by mistake, and the payee before its maturity notify the makers of the mis- take, and that he still looks to them for payment, it has been held that he may recover upon the note as well against the surety as against the principal, provided the surety has not prior to such notice, relying upon the surrender of the note, relinquished secu- rities held by him for his indemnity, or been in some manner damnified.' "Where a creditor told a surety that he considered the principal possessed of property sufficient to discharge the liability, that he had given or would give him time, that the prin- eipal would pay the debt, and that he did not want the surety any longer, it was held the surety was not discharged, there being no evidence that he i-elied on such representations or was injured thereby.* The same thing was held where the surety said to the creditor that he must make the debt out of the principal, and the creditor replied that he need put himself to no further trouble about the debt, as he had made a present of it to the principal, there being no evidence that the surety was injured thereby.' The holder of a note commenced suit on it, and levied an attach- ment on the property of the principal. The surety was informed 'Harris*. Brooks, 21 Pick. 195; to rick, 4Vt.l31; Bullard ». Ledbetter, 5 contrary effect, seeMahurin«. Pearson, The Reporter (Sup. Cfc. Ga.) 231. 8 New Hamp. 539. » Blodgett v. Biokford, 30 (Vt.) 731. "Whitaker v. Kirby, 54 Ga. 277. ••Brubakert). Okeson,36 Pa. St.519. On this subject, see Hogaboom v. Her- ' DriskeU v. Mateer, 31 Mo. 325. EIGHTS OF SUEETY AGAINST THIED PEESONS. 301 thereof, and ia consequence neglected to secure himself. After- wards the creditor dismissed the attachment suit and sued the surety. Held, the surety was not discharged, as the creditor made no agreement with, nor representation to, him that he would rely solely on the attachment or prosecute the suit.' Where the cred- itor knew that the surety was negotiating a loan for the principal, for the purpose of paying off therewith'the debt for which the surety was liable, and the creditor promised the principal without consideration to give him further time, and the surety in conse- quence desisted from his attempt to raise the money, and the principal failed to pay the debt, it was held the surety was not discharged." A having sent an order to B for certain goods, agreed to guaranty payment to B upon an undertaking of D to indemnify 0. B accordingly informed that the goods were preparing, and afterwards shipped them to A without notifying C that they were shipped. Afterwards D desired to recall his indemnity, upon which C wrote to B to know whether he had executed the order, to which no answer was given by B for a con- siderable time, he having gone abroad in the interim. Upon this, C, supposing from the silence of B that the order was not ex- ecuted, gave up his indemnity to D. Held, was not discharged from his guaranty.' § 213. Rights of surety against third persons — Indemnity of surety .^ — The principal may, before the debt has been paid by the surety, confess a judgment in favor of the surety for his in- demnity, and the lien of such judgment will be valid as against the creditors of the principal.* So a conveyance made by the principal to the surety, in consideration of an agreement by the surety to pay the debt, is valid as against the creditors of the principal.' The surety to whom a chattel has been mortgaged by the principal for his indemnity, may, before paying the debt, maintain trover against creditors of the principal who have taken and converted the chattel.' And in such case, one of three sure- ties has a right to recover damages if tlie property is of sufficient 'Barney v. Clark, 46 New Hamp. (Pa.) 374; Pringle «. Sizer, 2 Richard- 514. son, N. S. (So.Car.) 59; Tt^nneU v. Jef- ' Tucker v. Laing', 2 Kay & Johnson, ferson, 5 Harrington (Del.) 206. 745. ' MoWhorter v. Wright, 5 Ga. 555. ? Oxley V. Young, 2 H Blaokstone, ° Bellume v. Wallace, 2 Rich. Law 613. (So. Car.) 80. * Miller v. Howry, 3 Pen. & Watts 302 RIGHTS OF SUEETT AGAINST CEEDITOE. value, to the full extent of the debt for which he is liable, not- withstanding the fact that the consideration mentioned in the mortgage is only one- third of the debt.' Where property is mort- gaged by the principal to a creditor to secure his debt, and the mortgage is also conditioned that such creditor shall indemnify a surety for any money which he may be obliged to pay to an- other creditor of the principal to whom such surety is liable, such condition will be enforced.^ Where a surety has become bound, but has a right to withdraw from his obligation, an agreement for his indemnity, afterwards given by a third person in consid- eration of his remaining bound, is a valid contract, and the con- sideration is sufficient.' But where, after a surety had become bound, a third person, in consideration that he would remain bound an indefinite time, agreed in writing to indemnify him from loss, it was held that the agreement for indemnity was void for want of consideration, as the surety had assumed no liability beyond that which existed when the agreement for indemnity was made." A surety who holds the written agreement of a third person, conditioned for his indemnity, does not waive such agree- ment by afterwards taking security for his indemnity from the principal.^ The principals in a note agreed with their surety that if he would sign it, they would keep him indemnified by the use and application of a particular fund, as the surety might desire, or that they would secure him in any other way he might sug- gest. Held, this did not give the surety a lien on the particular fund, and it could not afterwards be assigned to him when the principal was in failing circumstances, so as to cut off other cred- itors. The surety having an option to take the particular fund or some other security, no lien was created." § 214. Surety entitled to benefit of collaterals — Creditor not bound to notify surety, when. — Where bank bills have been re- ceived from the principal by the creditor as a collateral security for the debt, it lies on the creditor, in a suit against a surety for the same debt, to show what has been done with them.'' A cred- itor who holds railroad bonds as collateral security, does not lose ' Bai-ker v. Buel, 5 Gushing, 519. * Rix v. Adams, 9 Vt. 233. "Rodes V. Crockett, 2 Yerg. (Tenn.) 'Drury v. Pay, 14 Pick. 326; gene- °^"' rally on. the subject of indemnity, see "Carroll e. Nixon, 4 Watts & Serg. SeaTet v. Young, 16 Vt. 658. (Pa.) 617; Carman v. Noble, 9 Pa. St. • ElUott v. Harris, 9 Bush (Ky.)237. 366- ' ' Spalding v. Bank, 9 Pa. St. 28. OEEDITOE TELLING SCTEETT SIGNING IS A MATTER OF EOEM. 303 his right to hold the bonds by suing the principal, and imprison- ing him upon getting judgment. Nor does he waive his lien on such bonds if he promise, without consideration, to give them up.' Where "the note of a stranger is received by a creditor from his debtor as collateral security for a debt, the creditor is not bound to notify the debtor of a proposition of the maker of the note to discharge it in property, though by a failure of the credi- tor to receive such property, the amount of the note is ulti- mately lost.^ Where a submission to abitration is made by a written agreement, a surety in the agreement need not be notified of the sitting of the arbitrators. " The reasons for such notice are no stronger than they would be for notice to bail of the pro- gress of the cause against the principal." " The payee of a note is not bound to notify one of several makers of a note who is a surety, of non-payment by the principal, and an agreement with the principal not to notify the surety, will not be such a fraudu- lent concealment as will discharge him. "If the plaintiff's not giving notice could not be fraudulent, could his agreement not to do it be so? Could his agreeing not to do what he was under no moral or legal obligation to do, be a fraudulent concealment. * An agreement. not to inform, and an agreement to conceal, are two very different things." ' § 215. Surety not discharged because creditor tells him his signing is a mere matter of form — Other cases. — Where the creditor has no security for his debt but the joint and several bond of sureties with their principal, he has a riglit to call upon any one of the sureties to pay it, and a court will not delay enforcing his claims until the several remedies against the other sureties may be exhausted.' Where the surety on a note given fey prop- erty purchased at administrator's sale, when requested by the principal to sign it, was told by the payee that his signature was only wanted as a form to comply with the requirements of the ordinary, it was held that no fraud was thereby practiced on the surety which avoided the note as to him. The court said it was 'Smithu. Strout, 63 Me. 205. The • Parmer ». Stewart, 2 New Eamp. surety haa a right to insist that a col- 97, per Woodbury, J. lateral security shall be so applied as * Grover v. Hoppock, 2 Dutcher (N. to relieve him; Kirkman v. Bank of J.) 191, per Vredenburgh, J. America, 2 Cold. (Tenn.) 397. ' Lowndes v. Pinckney, 2 Strob. Eq. "Rives V. McLosk ■, 5 Stew. & Port. (So. Car.) 44. (Ala.) 830. 304 EIGHTS OF SUEETT AGAINST CEEDITOE. SO common to say to a surety, when getting him to sign, that it was a mere matter of form, that it deceives no one.* Where the payee of a note merely advises the principal to carry his property to a better market out of the State, and sell it and -pay his debts, and if unable to pay all to pay^o rata, it is not a fraud upon, and will not operate as a release of, the sureties on the note.'' The deed or bond of a surety under seal for the simple contract debt of a principal, in which the principal does not join, does not, by operation of law, extinguish the simple contract debt of the principal.' § 216. Surety may defend suit against principal — How lia- bility of surety affected by fraud — Other cases. — A surety has a right for his own protection to defend an action against his principal.* The holder of a mortgage assigned it with a guaran- ty that there was a certain amount due on it. The assignee in his own name sued the maker, and recovered a less amount than that guarantied to be due, and the guarantor made and desired to argue a motion for new trial, and told the assignee that unless he was allowed to argue the motion, he should consider himself discharged. The assignee stated that he did not want a new trial in the case, and refused to allow the guarantor to argue the mo- tion, and judgment was thereupon entered for the smaller sum. It did not appear whether there was sufficient ground for a new trial, but the court said the guarantor had a right to argue the motion, and it was a valuable right of which the assignee would not be permitted to deprive him, and it was held that he was dis- charged." A bond with surety was conditioned that a lessee wonld complete certain improvements on premises therein describ- ed witliin four years. Before the expiration of that time the les- sor lawfully ejected the lessee from the premises. Held, the surety was not bound for the completion of the improvements, as the lessor had, although lawfully, prevented them from being completed." Although the release of the principal in a bond may have been obtained by a fraud practiced by him upon the obligee; yet if the surety was not a party to the fraud, and the ' Smyley v. Head, 2 Rich. Law (So. ■• Jewett v. Crane, 35 Barb. (N. Y.) Car.) 590. , 208. « Hawkins t>. Ridenhour, 13 Mo. ' Stark v. Fuller, 42 Pa. St. 320. 125. , » Trustees of Section Sixteen v. Mil- * White V. Cuyler, 6 Cum. & East, ler, 3 Ohio, 261. 176. SURETY EECOTEEING BACK MONET PAID. 305 obligee suffers several years to elapse witliout bringing suit or notifying the surety of the fraud, during which time the princi: pal becomes insolvent, these circumstances will discharge the surety.' After a surety had in fact been discharged by time giv- en the principal, the attorney of the principal represented to the surety that he was not discharged, and the surety relying there- on, deposited certain title deeds as security for the debt, and after- wards, in order to regain possession of such deeds gave certain notes. Held, the surety was not liable on such notes. The court said that money paid by mistake might be recovered back, and on the same principle the surety had a defense to the notes.^ Where F was induced through fraudulent representations of the vendor to purchase a patent-right, and W was also induced there- by to deposit with the vendor a government bond as security that F would pay the purchase price, and the patent was worthless, and F repudiated the sale, it was held that W might recover the amount of the bond in an action against the vendor, and that his remedy was not alone against F, his principal.' Joint judg- ment having been recovered against principal and surety, the surety pointed out property which he said belonged to the prin- cipal and told the sheriff to levy on it, which he did, and it was sold to the creditor for the amount of the debt. Two years after- wards the surety released a mortgage which he held for his in- demnity. The principal had in fact no title to the property sold, and became insolvent. Held, the surety was not discharged. He had not been misled and injured by the creditor, but on the contrary had misled and injured the creditor.* § 217. When surety cannot recover back money paid by him to creditor — Party ■who is indebted may become surety, and secure suretyship debt to exclusion of other creditors — Other cases. — If a surety, with full knowledge of facts which will discharge him, pays the debt, he cannot recover back the amount so paid from the creditor. He had a right to waive his defense, and by paying does so.' A siirety who pays a judgment rendered by a court below against the principal, which is afterwards reversed on error 'Gordon ». McCarty, 3 Wharton -'Wile ». Wright, 32 Iowa, 451. (Pa.) 407; McCarty v. Gordon, 4 * Chambers v. Cochran, 18 Iowa, Wharton (Pa.) 321. 159. 'Bristow V. Brown, 13 Irish Com. ' Geary v. Gore Bank, 5 Grants' Ch. Law Rep. 201. R. 586. 20 306 EIGHTS OF SURETY AGAINST CEEDITOE. at the suit of the principal, cannot recover the amount so paid from the creditor. The payment, although in fact made by the surety, is in law a payment by the principal.^ A surety who has paid the debt of the principal, cannot recover indemnity from a party who has agreed with the principal to pay the debt, there being no privity between the surety and such party." Money was loaned to a corporation on its bond and mortgage, and the stock- holders became individually liable as sureties for the repayment of the loan. Held, that other creditors of the corporation had no equity to compel the lender to exhaust his remedy against the sureties before resorting to the corporation for payment." In con- sideration of an extension of time given to one firm, another firm executed a mortgage on its property to secure the debt. At that time the firm which executed the mortgage had creditors who ^afterwards filed a bill to set aside the mortgage as fraudulent ■against them. Held, they were not entitled to relief. The court .said the mortgage was not voluntary, but was founded on a good ^consideration, viz: the extension of time to the principal debtor. A person or firm that is indebted, may become surety for another, the same as if such person or firm was not indebted, and such suretyship debt will be as valid as any other debt, and may be secured by the surety the same as any other debt.' § 218. Surety may enforce trust made for his benefit without his knowledge — Other cases. — Where a conveyance of land is made by absolute deed, and the grantee gives back to the grantor a written contract, promising to sell the land at a certain time, and to pay two notes with the proceeds, and to pay the balance ■to the grantor, such grantee holds the land in trust, and it is his duty to sell the same at the time specified, and apply the proceeds as provided by the contract; and if a third person be a surety on one of the notes, although he might not have known of the trust when it was undertaken, yet after he is informed of it, and can enforce its execution, the original parties to it cannot annul it, and he can enforce it in equity.' Eeal property was mortgaged •by a debtor to his surety to indemnify him against his indorse- 'Garrr. Martin, 20 New York, 306. 624. To a contrary effect, -when the " Hoffmann v. Schwaebe, 33 Barb. firm became surety for one of its mem- (N. Y.) 194. bers, see Kidder v. Page, 48 New * South Carolina Manf. Co. v. Bank, Hamp. 380. ■6 Rich. Eq. (So. Car.) 227. ' Pratt i: Thornton, 28 Me. 355. ■* AUen V. Morgan, 5 Humph. (Tenn.) MISCELLANEOUS OASES. 307 ments, and also to secure $3,000, due from the principal to the surety: Held, the creditors might, by suit in chancery, reach the property thus mortgaged, but the surety as to the $3,000, should share with the creditors ^to rata} "Where the principal assigns a fund to trustees to pay a creditor whom the surety afterwards pays, and the proceeds of the fund are then paid over in money by the trustees to the administrator of the principal, the surety is entitled to the benefit of the fund, and may recover it from the administrator in an action in his own name for money had and received." Where lands are conveyed to a trustee by the principal, to be sold for the benefit of his sureties, the sureties may bid and purchase at the trustees' sale the same as a stranger." The creditors of a party resolved to accept a composition payable in three instalments, there being a surety for the payment of the third instalment. Before the resolution accepting the composi- tion was passed, the debtor had agreed with the surety to indem- nify him by depositing goods with him and- this agreement was not made known to the creditors. After the resolutions were registered, the surety accepted bills of exchange for the amount of the third, instalment of the composition, and certain goods were deposited with him by the principal. The principal paid the first instalment, but failed to pay the second, and thereupon filed a liquidation petition. Afterwards the surety paid the third instalment. Held, the agreement with the surety for indemnity was valid, and he was entitled to retain the goods as against the trustee, under the liquidation. The creditors had no specific lien on the property, and after the composition was accepted the prin- cipal might do as he pleased with it." A became surety for B, who agreed orally to give A a mortgage on a house and lot for indemnity, and to insure the house for his benefit, which he did, the policy of insurance being payable to A. Afterwards, B sold the house and lot to C, who took it with a knowledge of the fore- going facts. canceled the policy of insurance on the house and took out a new one, payable to himself. The house was burned, and it was held that A was entitled in equity to have the insurance money applied in exoneration of his liability for B.° 'New London Bank v. Lee, 11 Ct. ^Ex ■parte Burrellln re Robinson, 112. La-w Rep. 1 Chancery Div. 537. ''Miller v. Ord. 2 Binney (Pa.) 382. ' Miller v. Aldrioh, 31 Mich. 408. 'Landisr. Curd, 63 Mo. 104. 308 EIGHTS OF SUEETY AGAINST CEEDITOE. It has been held that the principal, or if he be dead, his personal representative, is a necessary party to suit in chancery against the surety on a lost note.^ It has also been held that the cashier of a bank has no authority, by virtue of his office, to release a surety upon a negotiable instrument held by the bank, unless he is officially empowered so to do.^ § 219. When surety for a portion of a debt entitled to share in dividend of estate of insolvent principal — Other cases. — If a party gives a guaranty in which his liability is limited to a spec- ified sum, to secure to that extent any floating balance which may become due the creditor from the principal, and the principal be- comes insolvent, owing the creditor more than the amount lim- ited in the guaranty, such guarantor is entitled to share in the div- idend, out of the estate of the principal, where there is not enough of such estate to pay the balance, above the amount of the guaranty due the creditor.' But if the intention is to guaranty the whole debt to fhe extent of the amount mentioned in the guaranty, then the guarantor is not entitled to a share in such dividend. Upon this subject the court said it was a mere ques- tion of construction of the guaranty, and proceeded: " The class of cases referred to, do not lay down any general doctrine that where there is a surety, with a limit on the amount of his liabil- ity for the whole debt exceeding that limit, he is entitled to the benefit of a ratable proportion of the dividends paid on the whole debt; but only that where the surety has given a con tinning guar- anty, limited in amount, to secure the floating balance which may from time to time be due from the principal to the creditor, the guaranty is as between the surety and the creditor, to be construed both at law and in equity, as applicable to a part only of the debt, co-extensive with the amount of his guaranty, and this upon the^ ground at flrst confined to equity, but afterwards extended to law, that it is inequitable in the creditor, who is at liberty to increase the balance, or not to increase it, at the expense of the surety."^ 1 Greathouse v. Hord, 1 Dana (Ky.) pSid. As to the power of an attorney 105. at law, by virtue of his office, to do acts ' Daviess Co. Sav. Ass'n v. Sailor, which will dischai-ge a surety, see Giv- 63 Mo. 24; Merchants Bank v. Rudolf, ens v. Briscoe, 3 J. J. Marsh (Ky.) 529. 5 Nebraska, 527. These two cases do ' Hobson v. Bass, Law Rep. 6 Chan- not ao:ree as to whether the surety is eery Appl. Cas. 792. discharged by representations made by *EUis ». Emmanuel, Law Rep. 1 the cashier to the surety that the debt is Exch. Div. 157, per Blackburn, J. MISCELLANEOUS CASES. 309 It has been held, that upon the insolvency of the principal, a surety is considered in equity as a creditor, and may retain against an assignee for value, and without notice, any funds of the principal which he has in his hands.' But where an attach- ment act provided that if the debtor was " truly indebted " to the person in whose hands the property was at the time of the service of the attachment writ, such person might retain it to pay his debt, and an attachment was levied on property of the princi- pal, in the hands of a surety, which had not been pledged to the surety, for his indemnity, and the surety had not then paid the debt, it was held, the surety could not retain the property." 'Battle V. Hart, 2 Dev. Bq. (Nor. ^ Tongue p. Linton, 6 Rioli. Law (So. Car.) 31. Car.) 275. CHAPTER XL OF THE BIGHTS OF SURETIES AND GITABANTOES BETWEEN EACH OTHEB — CONTBIBUTION. Section. The rigM to contiibutioii subsists between co-sureties. Reasons upon wbich it is founded . . 220 Co-sureties bound by different in- struments liable to contribu- tion 221 Instances where sureties bound by- different instruments held liable to contribntion .... 222 It makes no difference with the right to contribution, that one surety does not know that an- other became bound as such . 223 When sureties for the same debt not liable to contribution. In- stances 224 When accommodation parties to negotiable instruments are co- sureties 225 The true relation between several sureties may be shown by parol evidence 226 Surety who becomes bound during course of remedy against prin- cipal,, not co-surety with origi- nal surety . . . . 227 Contribution cannot be recovered when it would be inequitable . 228 When surety, who becomes liable at the request of another sure- ty, not liable to contribution . 229 Surety of surety not liable to contribution .... 230 Surety who becomes principal lia- ble for whole amount paid by former co-surety. Other oases 231 Surety who pays debt for which principal or another surety is Section, not liable, cannot have contri- bution 232 When one surety entitled to ben- efit of indemnity secured by an- other surety .... 233 Instances of indemnity taken by one surety inuring to the benefit of all the sureties . . ' . 234 If surety surrender lien for his in- demnity on property of princi- pal, he discharges co-surety from contribution . . .235 If surety negligently lose indem- nity, co-surety released ftom contribution .... 236 Surety who obtains indemnity af- ter all the sureties have paid an equal amount, is not obliged to share it with the others . . 237 When suit for contribution can be brought by surety holding in- demnity 238 Surety may, before paying debt, file bill to compel co-surety to contribute, and to restrain him from transferring his property 239 Discharge of surety in bankrupt- cy does not release him from contribution to co-surety, who pays subsequently . . . 240 When surety who is discharged from liability to creditor, liable to contribute to co-surety, who subsequently pays . . . 241 Rights of bail who pay the debt against principal and sureties for the debt . . . .242 When surety who pays judgment (310) EIGHT TO CONTEIBUTION SUBSISTS BETWEEN CO-STIEETIES. 811 Section, may have execution therefor against co-surety . . . 243 How liability to contribution af- fected by giving of time to one of several co-sureties . . 244 Contribution as affected by release of principal or of co-surety. Fail- ure of consideration. Set-off, etc. .'.... 245 How far judgment against one surety evidence against co-sure- ty insult for contribution. Fail- ure of consideration . . 246 When surety can recover contribu- bution for costs paid by him . 247 Estate of deceased co-surety liable for contribution . . ' . 248 Surety who pays by his note may recover contribution from co- smety 249 What contribution surety who pays in land entitled to recover 250 When surety who has paid less Section, than his share of the debt can- not recover contribution . . 251 In what proportions co-sureties are liable to contribute . . 252 Surety may recover contribution either at law or in equity . 253 Whether surety must show insolv- ency of the principal in order to recover contribution . . 254 When suit for contribution should be joint, and when several . 255 Who not necessary parties to a bill for contribution, etc. . . 256 Surety may, without compulsion, pay debt when due, and imme- diately sue co-surety for contri- bution, without demand'or no- tice 257 When liability to contribution at- taches 258 When claim for contribution barred by the statute of limita- tions 259 § 220. The right to contribution subsists between co-sureties — Reasons upon which it is founded. — The principal question which arises between co-sureties, is that of contribution. The right to contribution results from the maxim that equality is equity. The creditor may collect all the debt from the principal or any one of several sureties, or he may collect from every surety his proper proportion. If, having this right, he collects it all from one surety, the law clothes such surety with the same power, and enables him to enforce contribution. "Natural justice says that one surety having become so with other sureties, shall not have the whole debt thrown upon him by the choice of the creditor, in not re- sorting to remedies in his power, without having contribution from those who entered into the obligation equally with him. The obligation of co-sureties to contribute to each other is not founded in contract between them, but stood upon a principle of equity until that principle of equity had been so long and so generally actnowledged, that courts of law in modern times have assumed jurisdiction. This jurisdiction of the courts of common law is based upon the idea that the equitable principle had been so long and so generally acknowledged and enforced, 312 EIGHTS OF STJEETIES BETWEEN EACH OTHER. that persons in placing themselves under circumstances to which it applies, may be supposed to act under the dominion of con- tract, implied from the universality of that principle. For a great length of time equity exercised its jurisdiction exclusively and individually; the jurisdiction assumed by courts of law is comparatively of very modern date.' It has also been said that "This right to contribution has been considered as depending rather upon a principle of equity than upon contract; bnt it may well be considered as resting alike on both for its foundation; for although generally there is no express agreement entered into be- tween joint sureties, yet from the uniform and almost universal understanding which seems to pervade the whole community, that from the circumstance alone of their agreeing to be, and becoming accordingly co-sureties of the principal, they mutually become bound to each other to divide and equalize any loss that may arise therefrom to each other, or any of them, it may with great propriety be said that there is at least an implied contract.'" § 221. Co-sureties bound by different instruments liable to contribution. — Co-sureties are liable to contribution, but sureties for the same principal who are not co-sureties are not so liable. Much of the learning on this subject is devoted to who are and who are not co-sureties." Where all the sureties sign the same instrument and become equally bound thereby, they are of course co-sureties and liable to contribute to each other. So, also, when several sureties become bound for the debt, default or miscarriage of the same principal, with reference to the same transaction, even though they become bound by different instruments, at dif- ferent times and for different amounts, they are generally consid- ered co-sureties and held liable to contribution. In the leading case on this subject the principal was receiver of the fines and forfeitures of the ciistoms of the outports, and to secure the per- formance of his duties gave three separate bonds in the same pen- alty, but signed by different sureties. It was held that the sure- ties in the three bonds were liable to each other for contribution. The court said: " If a view is taken of the cases, it will appear that the bottom of contribution is a fixed principle of justice, and is not founded in contract. * In the particular case of sure- ties, it is admitted that one surety may compel another to con- 1 Lansdale v. Cox, 7 T. B. Mon. (Ey.) ' Agnew v. BeU, 4 Watts (Pa.) 31, 401, per Bibb, C. J. per Kennedy, J. CO-SUEETIES BOTJND BY DIFFEEENT INSTBUMENTS. 313 tribute to the debt for which they are jointly boTind. On what principle? Can it be because they are jointly bound? What if they are jointly and severally bound? What if severally bound by the same or different instruments? In every one of those cases sureties have a common interest and a common burthen. They are bound as effectually quoad contribution as if bound in one instrument, with this difference only, that the sums in each instrument ascertain the proportions, whereas if they are all joined in the same engagement, they must all contribute equally." ' § 222. Instances where sureties bound by different instruments held liable to contribution. — Where an administrator upon as- suming the duties of his office, gave bond with sureties, and eight years afterwards, upon being required to do so, gave an additional bond with other sureties, it was held that the sureties on both bonds were liable to contribute to each other .^ The same thing was held, where an injunction was issued upon a bond given with one surety, which surety was held to be insufficient, and a new bond was given with two other sureties.^ Where a sheriff had been required, under an act of the legislature, to procure addi- tional security, and had at different times entered into new bonds with new sureties, it was lield that all the sureties on all the bonds were liable to contribution.* Execution was taken out against D as principal, and A and B as sureties, and lev- ied on the goods of D, who gave a forthcoming bond, in which A, B and E were bound as sureties for D. Execution was issued on the forthcoming bond, and E was compelled to pay the debt. Held, E was co-surety with A and B, and not a surety for them, and could recover contribution from them as co-sureties, but not full indemnity, as if they were principals." A bond was executed by A as principal, and B and C as sureties, with the stipulation that the sureties should not be discharged by any new arrange- ment between the creditor and the principal. B compounded with his creditors. The bond became due and payable, and the cred- 'DeeringD. The Earl of Winohel- gavetwoboncls; Bell's Admr.®. Jasper, sea, 2 Bos. & Pul. 270, per Byi-e, C. 2 Ired. Eq. (Nor. Car.) 597. B.; Id. 1 Cox, 318. See, also, Mayhew ^Bentley v. Harris' Admr. 2 Gratt. V. Crickett, 2 Swanston, 193; Breckin- (Va.) 358. ridgo V. Taylor, 5 Dana (Ky.) 110. * Harris v. Ferguson, 2 Bailey Law "Cobb' V. Haynes, 8 B. Mon. (Ky.) (So. Car.) 397. 137; the same thing was held, where a ^Perrins v. Eagland, 5 Leigh (Va.) guardian under similar circumstances 652. 314 EIGHTS OF SUEETIES BETWEEN EACH OTHER. itor threatening to sue unless A got another surety in place of E, one D, by a separate writing, became liable for the whole amount of the bond, " according to the tenor thereof." D was compelled to pay the bond, and it was held he was entitled to contribution from C. The court said that D became surety for the same debt for which was surety, " and in that case, in whatever way he became surety, if the other surety is called on to pay, he must contribute." ' In another case, A and B as principals, gave a note to 0, with D as surety thereon. C sold and indorsed the note to E. To obtain further time, A and B proposed to give a new note with D and F as sureties. E declined to give up the old note or receive the new one in its stead, unless would become a party to the new note, and thereupon signed it, adding after his name the words " as security." Held, that C, J) and F were co-sure- ties, and that D, who had paid the note, was entitled to contribu- tion from C and F. The court said that : " Whenever several per- sons are sureties bound for the same duty, they stand in the rela- tion of co-sureties, and are liable to contribution. * Nor will their becoming sureties at different times, without the knowledge of each other, or even by different instruments, affect their obli- gation." " § 223. It makes no difference -with the right to contribution, that one surety does not know that another became bound as such. — As the right to contribution results from equitable prin- ciples, and not from express contract, such right is not at all affected by the fact that the surety seeking contribution, or from whom it is sought, had no knowledge that the other had assumed the obligation of a surety for the same thing. Thus it has been, held that a surety, who becomes such without the knowledge of one who is already bound and pays the debt, may recover contri- bution from the first surety.' A as principal, and B and C, as sureties, signed a note, but the fact of suretyship did not appear therefrom. The holder afterwards became dissatisfied with the solvency of the signers of the note, and A procured D to sign the note under the names of the other signers thereof, upon a ' Whiting V. Burke, Law Rep. 6 Ch. ' Chaffee v. Jones, 19 Pick. 260. Appl. Cas. 342, per James, L. J. ; affirm- Holding that no agreement is neces- ing, Whiting v. Burke, Law Rep. 10 sary to entitle sureties who sign a note Eq. Cas. 539. at different times to contribution from " Woodworth v. Bowes, 5 Ind. (3 each other; see Warner v. Morrison, 3 Port.) 276, per Stuaxt, J. Allen, 566. WHEN STJEETIES FOE SAME DEBT NOT LIABLE TO OONTEIBUTB. 315 consideration moving from A to D. Afterwards A became in- solvent, and C was obliged to pay the note. Held, he was en- titled to contribution from D. The court said that the right to contribution exists only among those sureties who are liable for the same thing. But equity looks at substance more than form, and if several persons enter into contracts of suretyship, which are the same in their legal character and operation, though by different instruments, at different times, and without the knowl- edge of each other, they will be bound to mutual contribution.' In another case, A, B and signed a note, B and C being sure- ties, but that fact not appearing from the note. A, being in pos- session of the note, asked D to sign it, telling him B and C were principals. D thereupon signed it, adding after his name the word " surety." D was obliged to pay the note, and it was held that he could recover contribution from B and C as co-sureties, but could not recover indemnity from them as principals." § 224:. When sureties for the same debt not liable to contri- bution — Instances. — Where, after principal and surety had signed a note, a third party also signed it, and added to his signature the words " surety for the above parties," it was held that such third party was not a co-surety with the first surety, and was not liable to him for contribution. The Court said: " The defendant had a right to qualify his contract, as he pleased, consistent with the rules of law. He refused to sign as a co-surety with the other sureties, but did sign as surety for the whole, in which there was certainly nothing unlawful." ^ It has been held that, " where separate bonds are given with different sureties, and one is intended to be subsidiary to, and a security for the other in case of default in the payment of the latter, the sureties in the second bond would not be compellable to aid those in the first bond by contribution." * Where several sureties became bound by separ- ate bonds for the same amount on account of one principal to the same creditor, but the amount of all the bonds did not equal the 'Monson v. Drakeley, 40 Ct. 552. (Miss.) 532; Keith v. Goodwin, 31 Vt. 'Whitehouse v. Hanson, 42 New 268. Hamp. 9; to similar effect, see Norton ' Harris v. Warner, 18 Wend. 400, V. Coons, 3 Denio, 130; see, also. War- per Nelson, J. ner ». Price, 3 Wend. 897; McNeill;. "Salyers v. Ross, 15 Ind. 130, per Sanford, 8 B. Mon. (Ky.) 11; Beaman Davison, J. To similar effect, see V. Blanehard, 4 Wend. 432; contra. Whitman v. Gaddie, 7 B. Mon. (Ky.) Hunt V. Chambliss, 7 Smedes & Mar. 591. 316 EIGHTS OF SUEETIES BETWEEN EACH OTHEK. sura due from the principal to the creditor, it was held that every surety being bound for an individual sum, they were not co-sureties, and there was no right to contribution between them.' A being indebted to B in 12001., C, D and E, each separately, agreed to become A's surety by a separate ihstrument for 400Z. C and D each executed a separate instrument with A, to B, in the sum of 400Z., but E would not execute any instrument. 0, being sued, claimed to be discharged, because E had not executed an instrument as agreed. The Lord Chancellor thought the agreements of 0, D and E to become sureties had no connection with each other, and if E had executed the instrument, as agreed, he would not have been co-surety with C, and was, therefore, not discharged." In another case, A borrowed money on a mort- gage of his estates D and S, to which B, a prior incumbrancer on estate D, and 0, a prior incumbrancer on estate S, were par- ties, and consented to give the mortgage priority over their respective charges, but it was stated in the mortgage that they joined for no other purpose. The lands were subsequently sold, and the mortgage paid out of the joint proceeds. The residue of the fund produced by the sale of estate S was not sufficient to pay C's incumbrance. Held, was not entitled to contribution against B, there not having been any common liability to pay a common demand. The Court said: "The foundation of the right (to contribution) is * a common liability for a demand upon the parties in common. Now, in the present case, there is no common liability for a common demand. Each party agreed upon his own behalf to postpone his own particular charge. It has so turned out, that by reason of a deficient fund, there is not suifi- cient to pay all the charges, and, therefore, the parties giving prior- ity have lost their respective charges. But where is the common liability for the same demand ? There being no common liabihty, there is no foundation for any equities among themselves." ^ § 225. 'When accommodation parties to negotiable instru- ments are co-sureties. — The weight of authority ^g, that succes- sive accommodation indorsers of negotiable instruments are not, in the absence of an agreement to that eflfect, co-sureties, nor liable to contribution as between each other.* To constitute the ' Pendlebury v. Walker, 4 Younge 'In re Eeily, 9 Irish Ch. R. 87, per & CoU. (Exch.) 424. Brady, C. »Coope».Twynam, 1 Turner &Russ, erty, fast- en the whole of it upon the other ? We think that the principle may well have this extended application." ' After a judgment creditor had filed a creditor's bill against the principal and others, to subject money or assets fraudulently assigned by the principal to such others, a surety for the debt paid it, upon the express condition that he should have the right to prosecute the creditor's bill. Held, that paying the judgment, did not, under the circum- stances, extinguisli it, and the surety had a right to prosecute the creditor's.bill." § 240. Discharge of surety in bankruptcy does not release him from contribution to co-surety, who pays subsequently. — The dis- charge of a surety in baiikruptcy does not usually release hira from a claim to contribution by a co-surety who afterwards pays the debt In a case in which this was held, the court said: "There • Bowen v. He skins, 45 Miss'. 183, ' Harris v. Carlisle, 12 Ohio, 169. per Simrall, J. 336 EIGHTS OF SUEETIES BETWEEN EACH OTHEE. was here no debt capable of estimation in order to its being proved, because two contingencies were to be taken into consid- eration ; first, whether the original debtor would not himself pay the debt, and secondly, whether tliis defendant would ever be called upon to pay it. 1 do not see how it is possible to say that any such debt existed between these parties as could have been proved under the commisson." ^ § 241. When surety who is discharged from liability to creditor liable to contribute to co-surety, who subsequently pays. — It has been held that the release of one surety, without the consent of his co-surety, from liability to the creditor, will not discharge him from liability to contribute to the co-surety, who is subsequently compelled to pay the debt.' But where suit was brought against one of two siireties, and judgment recovered which such surety paid, and before the judgment was rendered, the other surety who was not sued, became released by the statute of limitations, it was held that the latter was thereby released from liability to contribu- tion. In this case the surety who was sued had a statutory right to have compelled a suit to be brought against the other surety.^ § 242. Rights of bail, who pay the debt, against the principal and sureties for the debt. — If one of two sureties in a bail bond in a civil action, voluntarily pays the judgment against the prin- cipal before the bail are fixed, he cannot recover contribution from his co-surety in the bond: The latter had a right to relieve himself from liability by surrendering the body of tlie principal, and he could not be deprived of this right by a voluntary pay- ment by the other surety.* An attachment of B's property was dissolved upon a bond being given by him, with C and D as sureties. The creditor A, recovered a judgment in the attach- ment suit against B, which was not paid, and then brought suit on the bond and recovered a judgment therein against B, G and D, and arrested B on the execution issued on this judgment. B applied to take the oath for the relief of poor debtors, and en- ' Clements v. Langley, 2 Nevile & New York, 59; Miller v. Gillespie, 59 Man. 269, per Denman, C. J.; Goss v. Mo. 220. See, also, on this subject, Gibson, 8 Humph. (Tenn.) 197; Eber- Hays v. Ford, 55 Ind. 52. hardt v. Wood, 2 Tenn. Ch. R. (Coop- ' Hill v. Morse, 61 Me. 541; Clapp v. er,) 488; Dunn v. Sparks, 1 Ind. 397; Rice, 15 Gray, 537. Swain b. Barber, 29 Vt. 292; Keer r. 'Shelton v. Farmer, 9 Bush. (Ky.) Clark, 11 Humph. (Tenn.) 77. To eon- 814. trary effect, see Tobias r. Rogers, 13 *Skillin«. Merrill, 16 Mass. 40. WHETHEE PAYMENT EXTINGUISHES JUDGMEN'f. BAIL. 33T tered into the statutory recognizance with E as surety, to deliver himself up for examination. * After a breach of the condition of the recognizance, C and D paid the amount of the judgment to which they were parties to A, and brought suit in his name for their benefit, on the recognizance against E. Held, they could not recover. Payment of the judgment by them discharg- ed it and released E. There was no privity between C and D and E. They were sureties for A under different contracts. They were all principles as to E; nor did the doctrine of subroga- tion apply.' Principal and surety executed a bond, but the fact of suretyship did not appear from it. Suit was commenced on the bond, and tlie principal was arrested and gave bail, who at that time had no knowledge of the suretyship. The surety was not served, and no judgment was rendered against him. The bail was obliged to pay the debt, and sued the surety for in- demnity. Held, he was not entitled to recover.^ A and B owed a note upon which suit was commenced, and A was arrested, and became his bail. Judgment was recovered against A and B, which C, as the bail of A, was obliged to pay. Held, that C was not entitled to recover indemnity from B, as there was no privity between them. It was the case of a person paying the debt of anotlier without any request express or implied.' § 24.3. When surety who pays judgment may have execution thereon against co-surety. — Judgment was recovered against A, B, and D, who were co-sureties. A, B and C paid the judg- ment, and had execution issued thereon, and placed in the sher- iff's hands, with directions to make one-fourth of it from the property of D. No property of D was found, and A, B and C filed a creditor's bill against him to reach his effects. Held, the sureties who paid were entitled to subrogation to the creditor's rights in the judgment, so as to proceed against their co-surety D, and that a court of equity would prevent the extinction of a judgment, so as to afford a surety a remedy against a co-surety.* Although this is the approved doctrine, it has been held that the surety who pays a judgment, thereby extinguishes it, and that he cannot afterwards have an execution thereon against his co-surety.' ' Holmes v. Day, 108 Mass. 563, '' Cuyler v. Ensworth, 6 Paige Ch. " Smith V. Bing. 3 Ohio, 33. R. 32. 'Osborn v. Cunningham, 4 Dev. & 'McDanieli'. Lee, 37 Mo. 204; Hull Bat. Law (No •. Car.) .423. v. Sherwood, 59 Mo. l72. 22 338 EIGHTS OF SURETIES BETWEEN EACH OTHEE. § 244. How liability to contribution affected by giving of time to one of several co-sureties. — If oHe of two CO-Sureties consents to tlie giving of time to the principal, and the other does not, and the one who so consents afterwards has the debt to pay, he cannot recover contribution from the surety, who did not consent to the extension. The latter was discharged from his obligation to the creditor, and likewise from contribution, by the extension. There is no stronger obligation between co-sureties that they shall contribute, than there is that they shall pay the creditor, and a giving of time releases them from the creditor, and will under the foregoing circumstances release them from each other.' A was creditor, B principal, and C, D and E sureties, on a bond, which became due, and C gave his -obligation to A, pay- able by instalments, in payment of the debt. Subsequently, and after the payment of the first instalment, took from B his bond for an extended time, to secure the same debt. Held, that by the payment of the original debt as above, C became subrogated to the place of A, the creditor, and that by giving time to B, the same results followed as if had been the original creditor. C ■could not, therefore, recover contribution from D.^ After judg- ment against a principal and two sureties, the creditor gave time to one of the sureties. Held, "he thereby discharged the other surety from liability to him for the portion of the debt which the surety to whom the time was given was liable to contribute.' Two sureties entered into an indemnity bond, and one of them being pressed for paj'^ment, gave a warrant of attorney to confess judgment for the debt, due at a future time, and afterwards paid the debt. Held, that the giving of time to him by the creditor, did not discharge his co-surety from liability to contribute.* §'245. Contribution as affected by release of principal or of co-surety — Failure of consideration — Set off, etc, — If a surety re- leases the principal from liability to indemnify him, he thereby releases his co-surety from contribution.' If there are three sureties, and one of them pays the debt and releases one of the others upon payment of less than his share, he may recover from 'Brown v. McDonald, 8 Yerg. ' Ide «. Churchill, 14 Ohio St. 372. (Tenn.) 158; Beckham v. Pride, 6 Rich- * Dunn v. Slee, 1 Moore, 2. ardson Eq. (So. Car.) 78; Boughton v. ' Draughan v. Bunting, 9 Ired. Law Bank of Orleans, 2 Barb. Ch. R. 458. (Nor. Car.) 10; Fletcher v. Jackson, " Cameron v. Boulton, 9 Up. Can. C. 23 Vt. 581. iP.R. 537. EELEASE OF PRIHCIPAL. SET-OFF. 339 the third surety one-third of ihe debt which he has paid.' The right to contribution between co-sureties is not destroyed by the fact tha,t they agree among themselves to pay and do pay the debt due a bank, in the notes of the bank.'' Wliere a surety is released by the creditor, with the consent of his co-sureties, he thereupon ceases to be co-surety with them, and is not afterwards liable to them for contribution." If one of several co-sureties agrees to pay the entire note on which they are liable, but the consideration for the agreement fails, and he afterwards pays the note, he will not be prevented by the agreement from recoveripg contribution from his co-sureties. The action for contribution being an equitable one, equitable principles should prevail.^ It has been held that in an action by a surety against his co-surety for contribution, the latter cannot defend by setting up by way of counter-claim recoupment or set-off a cause of action existing in favor of the principal against the plaintiff.' A being princi- pal, and B, C and D sureties, they all became insolvent except D, who paid the debt." Before such payment, but after C and D became sureties, D executed his bond to for a sum less than half the amount of the debt for which they were liable as A's sureties, and assigned this bond to a trustee for the benefit of his creditors. Held, the trustee stood in no better position than and D might by bill in equity set ofi" O's liability to him as co- surety against his liability on the bond." A and B were the pay- ees and accommodation indorsers of a note made for the accom- modation of C, and signed by him Having been obliged to pay the note, A sued C for indemnity, after his remedy against C on the note was barred by the statute of limitations, but within apt time after he paid the money. Held, he was not entitled to re- cover. The court said that his only remedy against was on the note, and that was barred by the statute. Until the time of Lord Mansfield, the surety had no remedy at law against his principal on an implied promise. His remedy for reimbursement was in equity, unless he took a bond to secure indemnity. Implied promises will not be raised where there is no necessity for it. ' Currier o. Baker, 51 New Hamp. * Prindle v. Page, 21 Vt. 94. 613. 6 O'Blenis v. Earing, 57 New York, = Derossett v. Bradley, 63 Nor. Car. 649. 17. ' Wayland v. Tucker, 4 Gratt. (Va.) ' Moore v. Isley, 2 Dev. & Batt. Bq. 267. (Nor. Car.) 372 340 EIGHTS OF SUEETIES BETWEEN EACH OTHEE. " If the party choose to take a securitj-, there is no occasion for the law to raise a promise. Promises in law only exist where there is no express stipulation between the parties." ' § 246. How far judgment against one surety evidence against co-surety in suit for contribution — Failure of consideration. — • Where a judgment was recovered against a principal and one surety, which was paid by the latter, it was held in a suit by such surety against a co-surety, for contribution, that the co-surety could not show as a defense that the consideration of the note on which they were both sureties, had failed. The court said: "ISTo question of consideration is involved in the contest between co- sureties, for they enter into the undertaking without reference, as between themselves, to the consideration paid their principal. If ' his contract was entirely without consideration, the relative rights of these parties would be precisely the same, and on payment by one, the right to contribution is called into existence. Each has impliedly agreed with the other to protect him to the extent of the joint undertaking against the consequences arising out of the failure of the principal." " It has been held that a joint judgment against co-sureties is, in a suit between them for contribution, con- clusive evidence that a cause of action existed against them.' Where judgment is recovered against part of the sureties, in a bond which is satisfied by theni, it has been held, in a suit by them against theii' co-sureties, for contribution, that such judgment is competent evidence to show the amount of the payment made by the plaintiffs, and the circumstances under which it was made, but not for the purpose of proving the liability.* § 247. When surety can recover contribution for costs paid by him. — ^Whether a surety can recover from his co-surety con- tribution for the costs of a suit against him, for the collection of the debt, depends upon the circumstances of each case. Where a joint judgment is recovered against the principal and two sure- ties, or against two sureties alone, and one of them pays it, he can recover one-half of the costs of the suit from his co-surety. In holding this principle, it has been said: "The failure to pay ' Kennedy ». Carpenter, 2 Wharton 'Cave ». Bums, 6 Ala. 780, per (Pa. ) 344. Holding that one surety on Goldthwaite, J. a sheriff 's bond cannot recover at law " Waller v. Campbell, 25 Ala. 544. on the bond against his co-sureties, < Fletcher v. Jackson, 23 Vt. 581. see Mitchell v. Turner, 87 Ala. 660. ESTATE OF DECEASED CO-BUEETY MU^T CONTEIBUTE. 34:1 which occasioned the costs, was imputable to the defendant as much as to the plaintiff. The plaintiff paid the execution, in- cluding the costs. ■" The costs cannot be distinguished from the debt. Every equitable principle which entitles the plaintiff to contribution for the one, applies equally to the other." ' So, a surety may recover contribution from his co-surety for the costs and expenses of defending a suit against him for the debt, if the defense was made under such circumstances as to be regarded prudent." Where the only surviving surety on a joint bond (he alone being subject to an action at law) is sued, and defends the action ionafide, and thereby reduces the amount of the creditor's demand, the representatives of a deceased co-surety are liable to contribute towards payment of the costs, and other expenses in- curred in defending the action at law." "Where two co-sureties executed a warrant of attorney on which judgment was entered up, it was held that the surety who paid the judgment and costs, could recover one-half the costs from his co-surety.'' It has, how- ever, been held that a surety cannot recover from his co-surety any part of the costs of defending himself in a suit against him by the creditor, unless the co-surety authorized him to defend the action.' § 248. Estate of deceased co-surety liable for contribution.— If two co-sureties become bound in a joint, or joint and several ob- ligation, and one of them dies, and the other before or after such death, pays the debt, he can recover contribution from the estate of such deceased co-surety, either at law or in equity, to the same extent as if such co-surety was alive. As between co-sureties there is an implied agreement for contribution at the time they sign, and this implied agreement is not joint, but several. It is like any other promise to pay money for which the personal re- presentative of the deceased promisor is liable; and it makes no difference whether the default was committed before or after the death of the promisor." "Davis V. Emerson, 17 Me. 64, per 'Kemp v. Finden, 12 Mees. & Wels. Weston, C. J.; see, also, Briggs v. 421. Boycl, 37 Vt. 534. ' Joliu v. Jones, 16 Ala. 454; Knight 'Pletcheri). Jackson, 23 Vt. 5S1 ; see v. Hughes, Moody & Mai. 247. also, Breokenrid^e v. Taylor, 5 Dana "Bradley «. Burwell, 3 Denio, 61; Ai- (Ky.) 110. kin J). Peay, 5 Strob. Law (So. Car.) 15; ' McKenna v. George, 2 Richardson Conover v. Hill, 76 111. 342; Bachelder Eq. (So. Car.) 15. v. Fiske, 17 Mass. 464; Stothoff v. 34:2 EIGHTS OF SUEETIES BETWEEN EACH , OTHEE. § 249. Surety who pays by his note may recover contribution from co-surety. — If two co-sureties are bound for a debt, and one of them pays it by giving his own note for it, which is accepted by the creditor as payment, the surety thus paying may at once and before paying the note so given as payment, sue his co surety for contribution, the same as if he had paid the debt in money. In holding this, it has been said : " Where one person is obli- gated to pay money for the use of another, a payment made in any mode, either property or negotiable paper, or securities, if such payment is received as full satisfaction of the demand, it is equivalent to, and will be treated as, a payment in cash. * Where the payment is received as a complete satisfaction, and the debt or obligation is extinguished, it is a matter of no moment to the person to whose use the payment is made, whether it is made in money, property or obligations. The benefit to him is the same, and the obligation to refund should be the same." ' § 250. What contribution -surety -who pays in land entitled to recover. — Where a surety paid the debt of the principal in lands, it was held, in a suit for contribution by him against a co-surety, that the price at which the lands were taken as payment by the creditor, would ordinarily be the amount on which the damages should be founded, but if the lands were taken at a very high price, as a compromise of a doubtful claim, the actual value of the lands might, perhaps, be the basis of the damages, and in such case the actual value of the lands should be allowed, no matter what they cost the surety." Where a principal was insol- vent, and one of two co-sureties paid the debt in real estate, which was taken by the creditor at about twice its value, on account of the failing condition of the parties, it was held that the surety thus paying was entitled to recover from his co-surety, as con- tribution, one-half of what the real estate was worth, and no more.' Dunham's Exrs. 4 Harrison (N. J.) 181 ; Ala. 547; Anthony v. PeroifuU, 8 Ark. McKenua v. G-eorge, 2 Richardson's (3 Eng.) 494; Hutching v. McCauley, Eq. (So. Car.) 15; contra, Waters v. 2 Dev. & Bat. Eq. (Nor. Car.) 399; Riley, 2 Harris & Gill. (Md.) 305. As White v. Carlton, 52 Ind. 371; Rob- to when the estate of a deceased sure- ertson v. Maxoey, 6 Dana (Ky.) 101. ty which has been distributed to his Contra, Brisendine v. Martin, 1 Ired. heirs, is liable to contribute to a co- Law (Nor Car.) 286; Nowland v. Mar- surety who has paid the debt, see Wil- tin, 1 Iredell Law {Nor. Car.) 307. liams V. Ewing, 31 Ark. 229. « Jones v. Bradford, 25 Ind. 305. 'Ralston v. Wood, 15 111. 159, per ' Hickman u. McCurdy, 7 J. J. Mar. Caton, J.; Pinkston v. Taliaferro, 9 (Ky.) 555. PEOPOETIONS IN WHICH SUKBTIES MUST CONTEIBUTE. 343 § 251. When surety vrho has paid less than his share of the debt cannot recover contribution. — A surety who has paid a portion of the debt, leaving the remainder unpaid, cannot usually recover conti'ibution from his co-surety, unless the amount so paid by him is more than his share of the common debt. The co-surety may, in such case, pay the rematinder to the creditor. In holding this, it has been said that: "The right to contribu- tion is founded, not on contract, but on the principle that equality of burden, as to a common right, is equity. * Where joint promisors or co-sureties have received equal benefits, or been relieved from common burthens, neither shall recover over ■ against another, unless for the excess paid by him beyond his due proportion or equal share." ' If, however, a surety discharges the entire debt by payment of less than his share, he may re- cover contribution from his co-surety.' Where one of two co- sureties of an insolvent administrator, purchased, at a discount, legacies for which the sureties were bound, it was held he could only charge his co-surety for one-half of what he paid for the legacies, and one-half the expense of purchasing them.' § 252. In what proportions co-sureties are liable to contri- bute. — If one of several co-sureties who are equally bound for the debt, pays it, he has a right in equity to recover, as con- tribution from his solvent co-sureties, a pro rata amount of the sum paid by him, based upon the number of solvent co-sureties, and excluding the insolvent ones.* The fact that one of several co-sureties has left the state, has in this regard been considered equivalent to his insolvency.' As a general rule, the surety who has paid the debt can at law only recover from his solvent co- sureties an aliquot part of the debt, based on the whole number of co-sureties, solvent and insolvent.' But in a state where there were no courts of equity, it was held that the surety who paid the 'Fletohfer v. Grover, 11 New Hamp. Law (Nor. Car.) 377; Klein v. Mather, 868; per Woods, J. Davies v. Hum- 2 Gilman (111.) 317; Burroughs v. Lott, phreys, 6 Mees & Wels. 153; Lytles' 19 Cal. 125; Young v. Clark, 2 Ala. Exrs. V. Pope's admr. 11 B. Mon. (Ky.) 264 ; Breckinridge v. Taylor, 5 Dana 297. (Ky.) 110. ''Stallworth v. Preslar, 34 Ala. 505. ' MoKenna v. George, 2 Richardson »Tarr v. Ravensoroft, 12 Gratt. Eq. (So. Car.) 15. (Va.) 642. « Stothoff v. Dunham's Exrs. 4 Har- '' Powell V. Matthis, 4 Ired. Law, rison (N. J.) 181; Morrison «. Poyntz, (Nor. Car.) 83; Toeing v. Lyons, 8 Gill 7 Dana (Ky.) 307; Cowell v. Edwards,'- '(Md.) 162; Samuel v. Zaohery, 4 Ired. 2 Bos. & Pul. 268. 34:4 EIGHTS OF StJEETIES BETWEEN EACH OTHEE. debt might at law recover contribution based on the number of solvent co-sureties, and excluding the insolvent ones.' On a question of contribution, partners who sign in the partnership name are to be regarded as but one surety." Whatever the num- ber of the principals may be, it cuts no figure with reference to the amount of contribution which will be enforced between co- sureties.' If three co-sureties agree among themselves when they sign, that if the principal fails to pay they will each pay one third, the surety who pays the whole debt can only recover from a solvent co-surety one-third of the amount so, paid, even though the other co-surety is insolvent.^ Where three persons give a note for their joint debt, each is to be considered with respect to the other as a surety with regard to two-thirds, and as a principal with regard to one third of the debt; and if one be insolvent and another pays the whole debt, the third shall contribute one-half to the one who pays.' Where co-sureties are bound for the same thing, but in different amounts, they are liable to contribute in the proportion of the amounts of the obligations signed by them respectively. Thus, A became bound for a deputy sheriff, in a bond of $2,000. B became liable for the same deputy on a sim- ilar bond for $18,000. A was obliged to pay the $2,000. Held, he was entitled to recover from B eight-ninths of the amount so paid by him." In another case, A was a guardian, and B became his surety in a bond of $10,000. C subsequently became A's surety in a bond of $5,000 ; both sureties being liable for the same thing, but in these amounts. Held, that B might recover from one third of the amount which he had paid for the default of the common principal.' But where several stockholders of a cor- poration, each owning different amounts of stock, signed a note as surety for thq corporation, and one of them paid such note, it was held, he was entitled to recover contribiition from his co- sureties, based on their numb er, and not on the amount of stock held by them respectively.' ^ Henderson v. Dufifee, 5 New Hamp. " Armitage v. Pulver, 37 New York, 38. 494. = Chaffee v. Jones, 19 Pick. 260. ' Bell v. Jasper, 2 Iredell's Eq. (Nor ' Kemp V. Frinden, 12 Mees. & Wels. Car.) 597. To same effect, see Jones v. 421. Blanton, 6 Iredell's Eq. (Nor. Gar.} * Swain i\ Wall, 1 Reports in Chan- 115. eery, 149 s Cobum v. Wheelock, 34 NewYork, 'Henderosn«.Duffee,5N.Hamp.38. 440. CONTEIBTJTION AT LAW AND IN EQUITY. 345 § 253. Surety may recover contribution either at law or in equity. — One of several co-sureties who has paid the debt, may recover contribution from the others in a suit -at law, for money- paid for their use, or he may bring his siiit for contribution in chancery. Originally the only remedy was in chancery, but courts of law afterwards assumed jurisdiction. The fact, however, that courts of law have assumed jurisdiction in this matter, or that it has been conferred upon them by statute, does not oust equity of its original jurisdiction. With reference to this it has been said : " The right to sue in chancery for contribution, was an established head of chancery jurisdiction in the time of Queen Elizabeth on the plain principles of natural justice. * Ulti- mately courts of law entertained actions between sureties, but the court of chancery did not on that account renounce its juris- diction. This tribunal still exercises a concurrent jurisdiction in all cases for contribution between sureties." ' § 254:. Whether surety must sho^w insolvency of the princi- pal in order to recover contribution, — In an action at law by a surety against his co-surety for contribution, the weight of author- ity seems to be, that the insolvency of the principal need not be averred nor proved.^ It has, however, been repeatedly held, that in a suit in equity by one surety against another for contri- bution, no recovery can be had unless the principal is shown to be insolvent, on the ground that the right to contribution does not rest on contract but on natural justice, and this element is wanting when the principal is solvent.' As the right to contri- bution is grounded upon the same reasons, both at law and in equity, it seems that the rule should be the same in both juris- dictions. § 256. When suit for contribution should be joint and when ' Coucli V. Terry, 12 Ala. 225, per 50 Ind. 158; Roberts v. Adams, 6 Port. Collier, C. J. ; Kemp v. Finden, 12 (Ala.) 361; contra, Morrmon v. Phjntz, Mees. & Wels. 421 ; Bachelder r. Fiske, 7 Dana (Ky . ) 807. 17 Mass. 464; SIoo v. Pool, 15 HI. 47; ^ Daniel v. Ballard, 2 Dana (Ky.) Poster V. Johnson, 5 Vt. 60; Crowder 296; Raineyc. Yarborough, 2 Ired. Eq. V. Denny, 3 Head (Tenn.)-359; con- (Nor. Car.) 249 ; Boiling v. Donegby, tra, Carrington v. Carson, Conference 1 Duvall (Ky.) 220; Allen v. Wood, Reports (Nor. Car.) 216. 3 Ired. Bq. (Nor. Car.) 386; Lawsonc. ' Judah «. Mieure, 5 Blaokf. (Ind.) Wrigbt, 1 Cox, 275; McCormack's 171; Caldwell v. Roberts, 1 Dana Admr. v. Obannon's Exr. 8 Munf. (Ky.) 355; Buokner's Admr. v. Stew- (Va.) 484. ai-t, 34 Ala. 529; Rankin v. Collins, 346 EIGHTS OF SUEETIE3 BETWEEN EACH OTHEE. several. — Where two or more co-sureties jointly pay the debt, they may join in a suit either at law or in equity against, a co-surety for contribution,' but when each pays separately tliey cannot usually join in such a suit.'' If one of several co-sureties pays the debt, he cannot usually maintain a joint action for con- tribution against his co-sureties.' A surety who has paid the debt cannot sue his principal and a co-surety jointly for reim- hnrscment." If two co-sureties pay the debt by their joint note, they may join in a suit for contribution against another co-surety, even though the latter became surety for them on the note with which they paid the debt.' Where three of four co-sureties paid part of the debt in money, each paying an equal amount, and for the remainder gave their note, which was accepted as payment, it was held that each might maintain a separate suit for contri- bution against the fourth surety .° Four parties were liable as co-sureties, and two of them each gave one-third the amount of the debt to a third surety, who put the remaining third necessary to pay the debt with the money thus given him, and therewith paid the debt. Held, the three sureties thus paying might join in a suit against the fourth for contribution. This was put upon the ground that each of the three sureties had paid the one-fourth which he ought to pay, and then each had contributed an equal sum to pay the amount for which the other surety was liable, and had paid it in one payment. The Court said: "We are of opinion that when three persons,, each of whom is responsible for SuB. entire sum, due from another, join in making the payment of that sum by a contribution agreed on among themselves for that purpose, they may join in one action to recover it from the person for whose benefit the payment has been made." ' Ten parties became sureties in a bond, and the principal and four of the sureties became insolvent. Five of the solvent sureties paid the debt, each paying an equal amount, and brought a joint bill in equity for contribution against the remaining solvent surety. Held, the bill could be maintained, although it was admitted that 'Dussol V. Bruguiere, 50 CaJ. 456; *Burnliam». Choat, 5 Up. Can. K. Fletcher v. Jackson, 23 Vt 581. B. R. (0. S.) 736. ^ Lombard v. Cobb, 14 Me. 222; Pres- « Prescott v. Newell, 39 Vt 82. cott V. Newell, 39 Vt. 82. « Atkinson v. Stewart, 2 B. Men. •Powell V. Matthis, 4 Ired. Law (Ky)348. (Nor. Car.) 83. ' Clapp v. Rice, 15 Gray (Mass.) 557, per Hoar, J. STTEETT WHO PAYS WITHOUT COMPULSION. 347 if the action had been at law several suits would have been necessary.' A, B and being co-sureties, judgment was recovered against them, and execution was levied on separate property- belonging to each. A and B paid the judgment and filed a joint bill against C and others, to be subrogated to the lien of the levy on the land of C, and to set aside certain conveyances thereof by 0', which were alleged to be fraudulent. Held, the bill might be maintained. The Court said that the object sought by the suit was the benefit of the levy. The levy is an entire thing in the sense of giving a lien capable of being enforced by sale for complainant's benefit; and their rights and interests, however separate in regard to their payments to the creditor and in regard to their claim against the pocket of their co-surety come together and join in the pursuit and subjection of the lien.' § 256. Who not necessary parties to a bill for contribution, etc. — To a suit in equity by a surety who has paid the debt against a co-surety for contribution, neither an insolvent principal nor in- solvent co-sureties are necessary parties.' It has also been held that a solvent co-surety who lives out of tlie state is not a neces- sary party tq a suit in equity for contribution between the other sureties.* Where one of two partners is insolvent, and has ab- sconded, and the other is dead, leaving a solvent estate, a surety for the firm who has paid the debt, may proceed in equity against the estate of the deceased partner, without prosecuting a suit against the survivor.' § 257. Surety may without compulsion pay debt when due- and immediately sue co-surety for contribution without demand or notice. — As soon as the debt becomes due, any one of several co-sureties may, without suit or compulsion on him of any kind, at once pay the debt and recover contribution from his co-sureties. All the co-sureties are equally liable for the whole debt, and a payment of the debt by one of them after it is due and without compulsion is in no sense a voluntary payment.' And in such case the surety who pays the debt may immediately and without 'Young V. Lyons, 8 Gill (Md.) 162. * Jones v. Blanton, 6 Ired. Eq. (Nor. ' Smith «.. Rumsey, 33 Micli. 183, per Car.) 115. Graves, J. ' Horsey v. Heath, 5 Ohio, 853. ^Byers v. McClanahan, 6 Gill & « Judah ». Mieure, 5 Blackf. (Ind.) Johns. (Md.) 250; Johnson's Admrs. v. Ill; Bradley v. Burwell, 3 L.aio, 61; "Vaughn. 65 111. 425; Young v. Lyons, Sta'lworth». Preslar,34 Ala. 505; Pitt 8 Gill (Md.) 162. v. Purssord, 8 Mees. & Wels. 638; Lucas 348 EIGHTS OF SURETIES BETWEEN EACH OTHEE. any demand on liis co-surety, or notice to him, sue him for con- tribution. In holding this, it has been said that upon payment by the surety, " the law immediately raised an obligation from the defendant to the plaintiff to pay an aliquot part of this sum, according to the number of the sureties. It was a present debt. It was a payment for the use of the defendant upon his request, implied by law; no special demand and notice were therefore necessary." ' § 258. When liability to contribution attaches. — The lia- bility of one surety to another for contribution, and of the prin- cipal to a surety for indemnity, attaches or springs up at the time the obligation which they have signed is delivered, and whenever payment may be made by the surety, he is considered as a credi- tor of his principal or co-surety from the time the obligation was made and delivered. This principle is applicable to a case where, after the obligation is delivered, and before it is paid, the principal or co-surety makes a conveyance of his property, which the surety who pays seeks to set aside as fraudulent." § 259. When claim for contribution bari'ed by the statute of limitations. — The statute of limitations begins to run between co-sureties at the time the debt is paid, irrespective of the time when the obligation was entered into or became due.' The surety who has paid more than his share of the debt, may for every separate payment he makes, sue his co-security for contribution, and the statute of limitations runs against each payment from the time it is made.* Where suit is commenced against one of two co-sureties before the debt is barred by the statute of limita- tions, and judgment is recovered against him, and the debt paid by him after the time when the statute would have been a bar if no suit had been previously brought, and after the debt is barred V. Gruy, 2 Bailey Law (So. Car.) 403: 387; Singleton v. Townsend, 45 Mo. Linn v. McClelland, 4 Devereux & 379; Broughton v. Robinson, 11 Ala. Batt. Law. (Nor. Car.) 458. 922; Knotts v. Butler, 10 Richardson, ' Chaffee v. Jones, 19 Pick. 260, per Eq. (So. Car.) 143; Camp v. Bostwick, Shaw, C. J.; Cage v. Poster, 5 Yerg. 20 Ohio St. 337; Preslar v. Sfcallworth, (Tenn.) 261; Wood ». Perry, 9 Iowa, 37 Ala. 402; Sherrod v. Woodard, 4 479; Parham v. Green, 64 (Nor. Car.) Devereux Law (Nor. Car.) 360; Stall- 436 ; contra, Carpenter v. Kelly, 9 worth v. Preslar, 34 Ala. 505; May v. Ohio, 106. Vann, 15 Pla. 553. ' Sargent v. Salmond, 27 Me. 539; * Davies v. Humphreys, 6 Mees. & Wayland v. Tucker, 4 Gratt. (Va.) 267. Wels. 153. 'Wood V. Leland, 1 Met. (Mass.) STATUTE OF LIMITATIONS. 349 by the statute against the co-surety, the statute begins to run between the sureties from the time of" payment, and the surety who pays may recover contribution from his co-surety at any time after such payment and within the statutory limitation.' ' Crosby v. Wyatt, 10 New Hamp. peculiar circumstances, see WUliam- 318; Crosby v. Wyatt, 23 Me. 156. son's Admr. v. Rees's Admr. 15 Ohio, For case holding surety discharged 572. from contribution by long delay under OHAPTEE XII. OF SUBKOGATION. . Section. Surety who pays the debt entitled to subrogation. How far Ms right in this regard, extends . 260 Surety not entitled to subrogation till he pays the debt. May waive right to subrogation. Discharged if right rendered unavailing by creditor . . 261 Person who occupies situation of surety or guarantor entitled to subrogation .... 262 Surety may enforce subrogation by suit in chancery . . . 263 How far surety will be subrogated to rights of creditor in suits commenced by him for recovery of the debt . . .264 Subrogation will not be allowed when it is inequitable or will prejudice rights of creditor. Instances 265 Surety not entitled to subrogation until the whole debt is paid . 266 Surety not entitled to subrogation aftfer statute of limitations has run, nor if he take separate in- demnity 267 When surety, who becomes such during prosecution of remedy against principal, not entitled to subrogation .... 268 Surety who pays entitled to sub- rogation to creditor's rights against co-surety . . . 269 Cases holding surety who pays amount of judgment, entitled to subrogation thereto without assignment .... 270 holding that surety who 272 273 274 Section, pays amount of judgment and takes assignment thereof, can enforce judgment . . .271 holding that payment of amount of judgment by surety extinguishes it, and prevents subrogation thereto . , Whether surety who pays spe- cialty debt of principal entitled to rank as specialty creditor Surety entitled to subrogation to all securities held by creditor. General observations. English statute .... Surety who pays entitled to sub- rogation to mortgage given by principal to creditor for securi- ty for debt . ' . . .275 Indemnitor of surety, who pays debt, entitled to subrogation. Subrogation against third par- ties with notice. Marshaling assets. Vendor's lien Subrogation of sheriff's sureties Subrogation of sureties of admin- istrator, and of county and city treasurer .... Surety for part of debt no right to subrogation to securities for an- other part of same debt. Similar cases . , . . When surety subrogated to cred- itor's right to set aside fraudu- lent conveyances by principal. Other cases When surety not entitled to sub- rogation as against special bail of the principal for the same debt. Other cases . (350) 276 277 278 279 280 281 SURETY ENTITLED TO SUBEOGATION. 351 Section. When creditor entitled to securi- ties given by principal to surety for his indemnity . . 282, 283 Creditor cannot avail himself of personal indemnity given sure- Section. ty, unless surety could have done so 284 Creditor cannot be subrogated to personal indemnity of surety after surely is discharged . 285 § 260. Surety who pays the debt entitled to subrogation — How far his right in this regard extends. — Intimately connected with the relation of principal and surety is the doctrine of sub- rogation. This is a doctrine of the court of chancery, and can- not usually be enforced in a court of law.' In cases where the person paying a debt stands in the situation of a surety or guar- antor, equity substitutes him in the place of the creditor as a matter of course, without any special agreement to that effect. A mere stranger or volunteer who pays a debt, cannot thus be sub- rogated to the creditor's rights." It has been said " That the surety, upon performance by him of his contract, is entitled to the original evidences of debt h6ld by the creditor, and to any judgment in which the debt has been merged, as well as to all collateral securities held by the creditor. The right of the sure- ty is not only that of subrogation, pure and simple, but a right to an assignment by the creditor. * By performing the con- tract of suretyship, the principal obligation is discharged against the creditor and is kept alive between the creditor, the debtor and the surety, for the purpose of enforcing the rights of the last." ° It has also been said that subrogation is a mode which equity adopts to compel the ultimate discharge of a debt by him who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay.' Where a party became bound by bond, which the importer and owner of certain goods did not sign, for duties due the United States, and afterwards paid such duties, it was held he was entitled to be subrogated to all the rights .and preferences of the United States, for the pay- ' Smith V. Harrison, 33 Ala. 706. ''Griffin v. Orman, 9 Florida, 22; Winder v. Diffeuderffer, 2 Bland's Ch. (Md.) 166; Richmond v. Marston, 15 Ind. 134; Co3 V. New Jersey Midland R. R. Co. 27 New Jer. Eq. 110; Hough V. ^naLife Ins. Co. 57 111. 318; Wil- son V. Brown, 2 Beasley (N. J.) 277; .Shinn v. Budd, 1 McCarter (N.J.) 234. ' Fielding v. Waterhouse, 8 Jones & Spencer (N.T.) 424, per Sedgwick, J. To same effect, s 'e Berthold, Admx. v. Berthold, 46 Mo. 557. * McConnick's Admr. v. Irwin, 35 Pa. St. Ill, per Strong, J. See, also, Heart v. Bryan, 2 Devereux Eq. (Nor. Car.) 147. 352 BUBEOGATION. ■ment of tlie duties. The court said that the importer remained" liable for the duties, notwithstanding the giving of the bond, and the signer of the bond, although bound by a separate instrument, still occupied the position of a surety, and was entitled to subro- gation as such.' A surety who becomes such at the request of the creditor, and without any request from the principal, is, if he pay the debt, entitled to subrogation. " 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 the debtor with the surety, but grows rather out of the rela- tions 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." " § 261. Surety not entitled to subrogation till he pays the debt — May waive right to subrogation — Discharged if right ren- dered unavailing by creditor. — Grenerally a surety or guarantor does not become entitled to subrogation until he has actually paid the debt for which he is liable.' But it makes no difference how he makes such payment. Thus sureties who pay the cred- itor in the creditor's own obligations,* and a surety who borrows money on his own notes, with which he pays the debt, but who has not paid such notes,' are entitled to subrogation. As the surety, wlien subrogated, stands in the shoes of the creditor, he is not entitled to any greater rights than the creditor was imme- diately before payment." The right to subrogation may be waived by the surety. Thus, where one surety consented that an- other surety might receive an indemnity from the principal for his sole benefit, it was held that the surety so consenting could not afterwards be subrogated to and share in such indemnity, but was bound by his waiver, even though no consideration passed between the sureties.' A judgment was recovered against a principal, which became a lien on his land. Afterwards a judg- 'Endersv. Brune,4Randolpli(Va.) 'Gilliam v. Esselman, 5 Sneed, 488. (Term.) 86. = Mathews v. Aikin, 1 New York, * City of Keokuk v. Love, 31 Iowa, 595, per Johnson, J. See, also, on 119. this subject, McArthur v. Martin, 23 ^Stedman ». Freeman, 15 Ind. 86. Minn. 74; Eaton v. Hasty, 6 Nebras- «Dozier e, Lewis, 27 Miss. 679. ka, 419; Talbot v. Wilkins, 31 Ark. ' IVus v. De Jarnette, 26 Ala. 280. 411. PBESON IN POSITION OF STJEETT ENTITLED TO SUBEOGATION. 353 ment for the same debt was recovered against B, a surety, wLich lie paid. Afterwards C recovered a judgment against B, and still later D recovered a judgment against B. After the recovery of all the judgments, ithe creditor assigned the judgment against the principal to B, who was entitled to subrogation thereto, and B on the same day assigned the judgment to D. Held, he might lawfully do so, and that D thereby obtained precedence in said assigned judgment over 0. The court said that B's " right of substitution is a personal one, which he might waive, and what right has his creditor to insist that it shall be exercised, not for his benefit, but against his will." ^ A surety upon payment of the debt is entitled to subrogation to all the securities held by the creditor for the payment of such debt at the time the same is paid, even though such securities were acquired without the knowledge of the surety, and after he became bound.^ " It is a well settled principle that the surety who has paid the debt of liis principal, is entitled to stand in the place of the creditor as to all securities for the debt held or acquired by the creditor, and to have the same benefit from them as the creditor might have had. * If the creditor parts with, or renders unavailable se- curities, or any fund which he would be entitled to apply in dis- charge of his debt, the surety becomes exonerated to the extent of the value of such securities, because securities which the creditor is entitled to apply in discharge of his debt, he is bound to apply, or to hold them as a trustee, ready to be applied for the benefit of the surety."' § 262. Person who occupies situation of surety or guarantor entitled to subrogation. — Any one who stands in the position of a surety or guarantor, whether strictly and technically such or not, is entitled to subrogation the same as a surety or guarantor. Thus, the grantor of land who has been obliged to pay a mort- gage which had been assumed by the grantee as part of the pur- chase money, is entitled to subrogation.* One of two joint pur- chasers of real estate who has paid more than his share of the purchase money, occupies the position of a surety as to such ex- ' Harrisburg Bank u. German, 3 Pa. 806; Smith v. McLeod, 3 Ired. Eq. St. 300; but see Neff v. Miller, 8 Pa. (Nor. Car.) 390. St. 347. 3 CuUum v. Emanuel, 1 Ala. 23, per 'Scanland v. Settle, Meigs (Tenn.) Collier, C. J. 169; Scott V. Featlierston, 5 La. An. " ^ Marsh v. Pike, 10 Paige Ch. R 595. 23 354 SUTtEOGATIOIT. cess, and is entitled to subrogation, and his right in that regard will prevail over the right of dower of the widow of the other joint purchaser.' So, where one of several principals agreed to pay a debt upon funds for that purpose being placed in his hands by the other principals, such other principals occupy the position of sureties, and if compelled to pay the debt, they are entitled to subrogation." The same thing was held where one partner was obliged to pay the firm debts after sell- ing out to the other partners, who agreed to pay the same.' Although at law one who accepts a bill for the accommodation of the drawer is regarded in favor of a hona fide holder as the principal debtor, yet, as between such acceptor and the drawer, the acceptor stands in the relation of a surety, and in equity is entitled, on payment of the bill, to be subrogated to the position of such holder of the bill in respect to any securi- ties of the drawer held by such holder to secure the payment thereof* "Where a creditor has two funds to which he may re- sort for the satisfaction of his debt, the one of which is primarily and the other only secondarily liable for the payment thereof, and the creditor makes the money out of the fund secondarily liable, the owner of such fund stands in the situation of a surety for the owner ol the primary fund, and is entitled to subrogation.^ § 263. Surety may enforce subrogation by suit in chancery., — At an early day, a surety who paid a bond signed by himself ■and a principal, was held to be entitled by suit in chancery to •compel the assignment of the bond to himself.^ Judgment was recovered against a principal and surety, and execution was issued .against the surety, who filed a bill to compel the creditor to as- sign the judgment to him upon payment of the debt. The cred- itor did not wish to do this, as he wanted the judgment extin- guished, so as to let in some subsequent securities he had taken from the principal. The court of chancery ordered the judgment ' Wheatley's Heirs v. Calhoun, 12 ' Morgan v. Seymour, 1 Reports in Leigh (Va.) 264. Chancery, 120 (decided A. D. 1640.) " Buchanan v. Clark, 10 Gratfc. (Va.) To a contrary effect, where the surety 164. offered to pay the debt, and demanded 'Fro-w, Jacobs & Co.'s Estate, 73 Pa. an assignment, see Gammon ». Stone, St. 459. 1 Vesey, Sr. 339; the Chancellor there *Bank of Toronto v. Hunter, 4 Bos- saying that the assignment was use- worth (N. Y.) 646. less. 5 Eddy V. Traver, 6 Paige, Ch. R. 521. STJBEOGATION TO SUITS COMMENCED BY CBEDITOE. 355 to be assigned.* So, it has been held that a surety who pays the amount of the debt into court, is entitled to a decree for subroga- tion. The court said: "A surety who satisfies the debt for which he is liable, is entitled to have from the creditor whose debt he pays, the securities which such creditor has obtained from the debtor; and if such securities are not voluntarily given up, it is the right of the surety to come to this court to have such securi- ty delivered." " Sureties who have paid the debt of their princi- pal have a right to file a bill in chancery to set aside an illegal sale of property mortgaged by their principal for the payment of the debt, and to have the proceeds properly applied.^ After the creditor has been paid, he cannot interfere to prevent a decree of subrogation in favor of one of several defendants in a judgment who has paid the debt. " His claim is satisfied, and he has no right to interfere with any disposition which the court thinks proper to make of the judgment as between the defendants." * Certain sureties of a railroad company were by decree of court subrogated to the rights of the creditor against the company, and the decree provided" that unless the money was paid within ten days, the road should not be operated. The money was not paid and the road was operated by a trustee, the company being insol- vent, and the trustee was attached for contempt. The court said the right of subrogation was purely equitable, and the extent to which it would be exercised depended upon circumstances. Whether it will be extended to the extremest point depends upon whether it is necessary to the protection of the sureties. Stop- ping the operating of the road would only depreciate it in value, and in no way benefit the sureties, and the attachment was discharged.' § 264. How far surety will be subrogated to rights of creditor in suits commenced by him for recovery of the debt. — If a debt is paid by a surety, and the creditor assigns to him any collateral securety therefor, the debt will be regarded as still subsisting and undischarged, so far as is necessary to support' the security. It has been held that an attachment is a collateral securety for the payment of the debt, and if the debt with the action or execution 'Hill V. KeUy, Ridgeway, Lapp & ^Lowndes v. Chisholm, 2 McCord Schoales (Irish) 265. Eq. (So. Car.) 455. ' Goddard v. Wbyte, 2 Giff ard, 449, * Springer's Admr. v. Springer, 43 per Sir John Stuart, V. G. Pa. St. 518, per Lowrie, C. J. 'In re HeWitt, 10 C. E. Green (N. J.) 210. 356 SrBEOGATION. is assigned to a surety, to enable liim to avail himself of tlie prop- , erty attached, the debt will be considered unpaid for that pur- pose only. " The rule that a surety may take an' assignment of any security for the payment of the debt, which is held by the cred- itor, unavoidably implies an exception to the general rule- that the payment of a debt by a co-debtor discharges the other co-debtors, whether the debt rests in contract merely or is merged in a judgment. It is of the nature of all securities for a debt, to be the mere incidents of that debt and entirely dependent upon it. Pay- ment of a debt discharges all the securities for it. The mortgage either of real or personal property is discharged by payment of the mortgage debt ; and in the same way pledges are at once at an end when the debt is paid. If, then, it was held that by the pay- ment of a debt by the surety the debt was entirely discharged, then all the collateral securities of the creditor must be also dis- charged. He would no longer have anything to assign, and the equitable principle that the surety is entitled to the benefit of all the securities of the creditor, would be entirely defeated. But it has never been so held, but the .debt is regarded as still unpaid and unsatisfied so far, and perhaps no further, than is necessary to the preservation of the surety's interest in such secureties." ' A verbal assignment of an attachment has been held sufficient in such a case.° A surety by recognizance, who pays the whole amount into court when pressed with crown process, is entitled to use the crown secureties in order to levy a moiety from his co- surety, and the fact that he has received indemnity from the princi- pal, does not interfere with such right, but he must share his indemnity with the co-surety.' Principal and sureties ex- ecuted a note, and the principal died. The creditor stated, swore to, and filed his account against the estate of the principal, in the probate court. One of the sureties paid the debt, and it was held that he was entitled to stand in the place of the creditor as to the steps previously taken to enforce the claim against the estate of the principal, and was subrogated to his right to prose- cute the same to an allowance, and to demand payment of the ad- ministrator, in the class in which it was placed by the original ' Edgerly v. Emerson, 23 New Hamp. = Brewer v. Franklin Mills, 42 New 555, per Bell, J. A decision to a con- Hamp. 292. trary effect concerning a replevin bond ' Latouclie ». Pallas, Hayes (Irish) taken in a suit, was rendered in Moore 450. V. Campbell, 86 Vt. 361. NO SUBEOaATION WHEN IT WOULD BE INEQUITABLE. 357 filing. The court said : " For the purpose of obtaining indem- nity from the principal, he is considered as at once subrogated to all the rights, remedies and securities of the creditor, and entitled to all his liens, priorities, and means of payment against the principal" ' But where pending a suit on a note against the principal and indorser, jointly, the ind orser paid the note, it was held that this payment was a bar to the further prosecution of the suit, even at the instance and for the benefit of the indorser.^ § 266. Subrogation ■will not be allowed when it is inequita- ble, or win prejudice rights of creditor — Instances. — Subroga- tion cannot be enforced when its enforcement would be contrary to equity, for the whole doctrine is the creature of equity ; nor can it be enforced to the prejudice of the creditor with reference to the debt for which the surety is liable.' Thus, a principal bought land and took a bond for its conveyance, and also gave bond with surety for part of the purchase money. The principal sold the conveyance bond to another, and the surety knew of the sale at the time thereof, but rnade no objection, and afterwards took a mortgage on other property from the principal for indem- nity, and suifered the principal to leave the state with other pirop- erty. Held, that the surety upon being compelled to pay the debt, would not be subrogated to the vendor's equitable lien, and thus get precedence of the purchaser of the conveyance bond. Having tacitly assented to its sale and taken other security, he was equitably estopped to claim subrogation.^ A. and B gave a joint and several note to C for $450, and to secure the same exe- cuted to him a mortgage on six pieces of land, three of which belonged to A and three to B. The note, and mortgage were signed by B, as the surety of A, but this did not appear from the instruments. Afterwards A mortgaged one of the same pieces of land to D, to secure $10b, and D afterwards became the legal holder of the first note and mortgage by assignment from C The mortgage for $100 was foreclosed by D, who then brought a suit against A and B to foreclose the mortgage given by them. B filed a cross-bill, and claimed that upon payment of the $450 note he was entitled to hold all three pieces of the land mort-' ' Braught V. Griffith, 16 Iowa, 26, ^ Stamford Bank v. Benedict, 15 Ct. per Dillon J. 4:^7. ^ Griffin V. Hampton, 21 Ga. 198. ^Henley v. Stemmons, 4 B. Mon. (Ky.) 131. 358 STJBEOGATION. gaged. by A, as his indemnity, and that the subsequent mortgage to secure $100, should be subject to the prior mortgage, to which he claimed to be subrogated. D did not appear to have had notice that B was a surety. It was held that B was not entitled to sub- rogation, on the ground that D had no notice of his rights as surety, and would, without fault on his part, be prejudiced if subro- gation was allowed.^ A party sold a tract of land and took three notes of the vendee for the purchase money, taking no other security than retaining his vendor's lien. Apprehending that the land, if sold, would not pay the notes, the vendor instituted on the second note an attachment suit against the purchaser, and levied on certain horses, to secure the release of which the purchaser gave a bond with sureties. Judgment was rendered for the plaintiff in the attachment suit. Afterwards the vendor obtained judgment on the third note, and sold the land and applied the proceeds to the payment of the the third note. The -sureties in the bond given in the attachment suit, filed a bill claiming to be subrogated to the lien of the judgment obtained in the attachment suit, and to have the proceeds of the sale, of the land applied to the payment of that judgment, claiming that it was a lien on the land prior to the lien of the judgment obtained on the third note. Held, tliey were not entitled to the relief, because to grant it would not be to place them in the position of the creditor with reference to the liens, but to take from the creditor a security which he had obtained, and cause him to lose the debt.^ A executed a mort- gage to secure several notes due from him to B, and B assigned all the notes, except the first one, to 0. Afterwards A sold the mortgaged premises to D, who agreed to pay all the notes, but did not, and the mortgage was foreclosed. A paid B the note held by him, with the understanding that such payment should not extinguish the note, and had it transferred to a third party. The mortgaged premises did not bring enough to pay all the notes, and the proceeds were ordered to be paid on the notes in the order of their maturity. A claimed that by means of the principles applicable to subrogation, the note he had paid to B 'Orvis V. Newell. 17 Ct. 97. that interest, though subordinate to ^ Crump, V. MoMurtry, 8 Mo. 408. that of the creditor, is prior in date to Holding that a surety will not be subro- the undertaking of the surety, see Far- gatedso as to defeat an interest acquir- mers & Drovers' Bank v. Sherley, 12 ed and held by a third person, when Bush (Ky.) 304. NO SUBEOGATION TILL WHOLE DEBT PAID. 359 should be first paid from such proceeds. Held, the claim was not well founded. Although by the transaction A occupied the posi- tion of a surety for D, yet lie was a principal as to C, and the proceeds of the mortgage must be first applied to paying the notes held by C.^ A county treasurer gave bond with sureties in the sum of 7,0001., and became a defaulter to the extent of 18,000Z. The sureties filed a hill, claiming that upon payment of the 7,000^. they were entitled to sue on the bond, and stand in the place of the creditor for that sum. The court said tliat if the crown had been fully paid the subrogation would have been decreed, for the crown would then have been a mere trustee, but as a large bal- ance remained due the crown the subrogation would not be made. "If the debts due to the crown and a subject be equal in degree, the prerogative of the crown gives priority to the former." ' Un- der certain peculiar circumstances, where it would be inequitable to refuse it, subrogation will bo allowed, although it 2:)rejudice the claim- of the creditor against the principal. Thus a bond with surety in the penal sum of 10,000Z. was conditioned for the payment of all such sums as should be advanced to the principal. 20,000?. were advanced to the principal, who then became bank- rupt. The surety paid the 10,000^., and filed a petition to be sub- rogated to the rights of the creditor against the estate of the principal, where the claim for 20,000?. had been proved. Held, he was entitled to be subrogated for the 10,000?. paid by him, and to have precedence out of the bankrupt's efl'ects over the other 10,000?. due the creditors. Tlie sureties had a right (although the bond was conditioned for the payment of all advances) to suppose that the advances would not exceed 10,000?., the penalty of the bond. The Chancellor said: " I think the bankers (creditors) are not entitled in equity to say as against the surety, that their de- mand is more than 10,000?., the amount of the bond he has given, upon which he would be ^^rima facie entitled to stand in their place ; as to the residue of their debt, they ought to be so con- sidered, if I may so express it, as their own insurers." ' § 266. Surety not entitled to subrogation until the -whole debt is paid. — As a general rule, subrogation cannot be enforced until the whole debt is paid to the creditor. Part may be paid 'Massie«. Mann, 17 Iowa, 131. 'Ex parte, Rushfortii, 10 Vesey, ' The Queen v. O'Callaghan, 1 Irish, 409, per Ld. Eldon, C . Eq. R. 439. 360 SUBEOGATION. by the principal and part by the creditor, and the surety then be entitled to subrogation, but the entire debt must be extinguished before subrogation can take place. It would not subserve the ends of justice to consider the assignment of an entire debt to a surety as effected by operation of law, where he had paid but a part of it and still owed a balance to the creditor, and a court of chancery would not countenance such an anomaly as a^ro tanto assignment, the effects of which could only be to give distinct interests in the same debt to both creditor and surety. Until the creditor is fully satisfied, there cannot usually be any interference with his rights or his secui'ities, which might even by bare possi- bility prejudice or embarrass him in any way in the collection of the residue of his claim.^ A surety who has j)aid interest on a note secured by mortgage where the principal remains unpaid, is not entitled to subrogation as to such payments.^ But a surety for a mortgagor who pays part of the mortgage, is, as against the mort- gagor, entitled to a charge on the mortgaged estate in a suit brought by the mortgagee to foreclose a mortgage." A creditor who holds, without special stipulations as to its application, security for various notes due from his debtor, some of which bear the name of sureties, may, in case of the insolvency of the principal and of some of the sureties, apply the same towards the payment of such of the notes as may be necessary for his own protection, and solvent sureties upon other of the notes cannot avail them- selves thereof in any way, in equity, without paying, or offering to pay, the whole of the notes for which the security was given. Where a surety in such a case sought relief, the court said: " It is obvious, that in order to become entitled to such substitution, he must first pay the whole of the debt or debts for which the property is mortgaged or the collateral security is given, to the creditor, for it would be manifestly unjust and a plain violation of his rights, to compel him to relinquish any portion of the jjroperty before the obligation, for the performance of whicli it ' HoUingsworth v. Floyd, 2 Har. & v. Leggett, 48 Miss. 139. To contrary Gill. (Md.) 87; Kyner v. Kyner, 6 effect, see Williams o. Tipton, 5 Watts (Pa.) 221; Recaivers of N. J. (Humph.) Tenn. 66. Midland R. R. Co. v. Wortendyke, 27 ^Qj^ung^t^ gioj^gj-t ggj^g^jjaj^jp. NewJer. Eq. 658; Bank of Pennsyl- 150; Neptune Ins. Co. v. Dorsey, S vaniai). Potius, 10 Watts (Pa.) 148; Md. Ch. R. 334; Swan «. Patterson, 7 Swan v. Patterson, 7 Md. 164; ex Md. 164. parte Rushforth, 10 Vesey, 409; Magee ^ Qg^yg i,_ jiatson, 25Beavan, 310. SlIBEOGATION AFTER STATUTE OF LIMITATIONS HAS EUir. 361 was conveyed to him as security, had been fully kept and com- plied with." ' "Where a trust fund was provided for the payment of several notes of a principal, on one of which was a suretv, and the surety paid such note, it was held he was entitled to be subrogated to the rights of the creditor; and to share pw rata in the proceeds of the trust fund, the decision being put upon the ground that such were the express terms of the trust.^ Suit having been brought against principal and sureties on a city treasurer's bond, the sureties claimed a set-off, and also filed a cross-petition, claiming to be subrogated to certain rights of the city against a bank. Judgment was rendered against the sure- ties, but subrogation was denied them, and they then paid the judgment, and appealed from the order denying them subroga- tion. It was claimed that the sureties were not entitled to sub- rogation till they had paid the debt, and as they had not paid it when the decree was rendered, the decree was right. The court said: "All this is answered by the single proposition that tht* power of a court of equity is not limited to settling the rights of parties upon what has been done in the past, but it reaches forth and declares their duties and rights for the future, and in the exercise of this latter power it should have decreed that when the sureties paid the debt of their principal, they should be sub- rogated to the rights of the creditor." ^ § 267. Surety not entitled to subrogation after statute of lim- itation has run, nor if he take separate indemnity. — Where a surety who has paid the debt does no act before his claim is barred at law by the statute of limitations, manifesting his inten- tion to put himself in the place of the original creditor, and thereby subrogating himself to the creditor's rights, equity will not subrogate him to those rights.* If the surety, knowing of the existence of a mortgage given by the principal for the payment of a debt, take a distinct securety for his indemnity from the principal, it has been held that he thereby waives his right of subrogation to the mortgage held by the principal. In such a case the court said: "He must proceed under one or other 'Wilcox -0. Fairhaven Bank, 7 * Rittenliouse v. Levering, 6 Watts Allen, 270, per Merrick, J. & Serg. (Pa.) 190; Joyce v. Joyce, 1 ^Allison V. SutLerlin, 50 Mo. 274. Bush (Ky.) 474; Pink v. Mahaffy, 8 'City of Keokuk v. Love, 31 Iowa, Watts (Pa.) 384; Bank of Pennsyl- 119, per Cole, J. vania v. Potius, 10 Watts (Pa.) 148. 362 SUBEOGATION. of the two rights which he claims. If he had bound himself to pay the mortgage and had done so, he would then have been en- titled to the benefit of the mortgage. He has not done so. He has bargained by a separate instrument for an indemnity, which is perfectly distinct. * 'If a surety pay otf the mortgage, he is entitled to the benefit of all the securities. But here the plain- tiff has contracted with the mortgagor, for whom he is surety, that he should receive a particular species of indemnity if he pay oft" any part of the principal or interest of the mortgage. That in- demnity he is entitled to and hot to the benefit of the mortgage paid off." ' It has however been held that a surety who has taken a particular indemnity from the principal, will upon payment of the debt be entitled to subrogation to securities which the cred- itor acquired after the taking of such indemnity." § 268. ■When surety who becomes such during prosecution of remedy against principal, not entitled to subrogation. — A surety who was not originally bound for the debt, but who comes in during the prosecution of a remedy for the debt against tlie prin- cipal, cannot, by subrogation, obtain a preference over creditors of the principal whose liens attached before the surety became bound. Thus, tliree notes, payable annually, were executed and a lien retained on land to secure them. Judgment was obtained on the first note, which was replevied (stayed). The surety in the replevin bond paid it, and it was assigned to him. The holder of the third note brought suit to enforce the lien on the land, and 'it was held that his lien was superior to any right which the surety could obtain by means of subrogation.' The same thing was held where a judgment had been obtained against a principal who had given a mortgage on land to secure the debt, and he gave an injunction bond, with surety, to restrain the collection of the judgment. The court said : " We are decidedly of the opinion that a surety who first comes in as a surety in an obligation inci- dental to the prosecution of the legal remedy against the person ' Cooper ('. Jenkins, 32 Beavan, 337, wliere the surety became such for the per Sir John Romilly, M R. ; Corn- the purpose of staying an execution, ■well's appeal, 7 Watts & Serg. (Pa.) see Armstrong's Appeal, 5 Watts & 305. Serg. (Pa.) 352. For an application ' Lake ». Brutton, 8 De Gex, Macn. of the same principle to surety on notes & Gor. 440. for interest due on mortgage, see 'Bank of Hopkinsville v. Rudy, 2 Swan v. Patterson, 7 Md. 164. Bush (Ky.) 326. To the same effect, SUBROGATION AS BETWEEN CO-SUEETIES. 363 of the debtor, is prima f dole to be considered as trusting to his principal only, for whom alone he is surety, that upon his paying the debt, he is entitled to stand in the creditor's place only as to his remedies against the person and property of the principal, and that as to any prior surety, or any prior interest in the prop- erty which may be under pledge, he must occupy the place of the debtor." ' But where a judgment was recovered against princi- pal and surety, upon which a oa. sa. was issued, and the surety arrested, and he turned out certain* slaves to procure the discharge of his body from custody, and then gave a forthcoming bond for the slaves, with A as surety, which bond was forfeited, and A had the debt to pay, it was held that A was entitled to subrogation to the creditor's rights in the original judgment, and could enforce the lien of that judgment against land of the principal boUnd by the same.^ Judgment was recovered against A and B, which be- came a lien on the land of A. Afterwards, B alone prosecuted a writ of error from the judgment, and gave as surety on his error bond. The judgment was affirmed, and judgment was ren- dered against B and (Jin the Supreme Court, which Chad to pay: Held, he was entitled to be subrogated to the lien of the judgment creditor against the land of A. The judgment below remained in force and unsatisiied, and A was bound for it when it was afiirmed as much as B, and C having discharged it, was entitled to subrogation.^ § 269. Surety vylio pays entitled to subrogation to creditor's rights against co-surety. — A surety who pays the debt for which he and a co-surety are liable, will be subrogated to the rights of the creditor against the co-surety to the same extent that he would be subrogated to the rights of the creditor against the principal, la holding this principle, a most eminent judge said: " Where a person has paid money for which others are responsible, the equi- table claim which sudi payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substitu- ted, to every equitable intent and purpose, in the place of the creditor whose claim he has discharged. This principle of sub- ' Patterson v. Pope, 5 Dana (Ky.) ^ Leake v. Ferguson, 2 Gratt. (Va.) 241, per Marshall, J. But see Eod- 419. gers V. M'Cluers' Admr. 4 Grratt. 'Taul )). Epperson, 38 Texas, 492. (Va.) 81. 364 SUBEOGATION. stitution is completely established in tlie books, and being estab- lished, it mnst apply to all persons who are parties to the securi- ty, BO far as is equitable. The cases suppose the surety to stand in the place of the creditor, as completely as if the instrument had been transferred to him, or to a trustee for his use. Under this supposition, he would be at full liberty to proceed against every person bound by the instrument. Equity would undoubt- edly restrain him from obtaining more from any individual than the just proportion of that individual; but to that extent his claim upon his co-surety is precisely as valid as upon his principal.'" Where two sureties signed a joint and several promissory note, under seal, in which there was a warrant to confess judgment, and one of them paid it, and the word " paid " was written across its face, it was held that the surety making such payment might have judgment entered on the note in the name of the payee to his use, and have execution thereon against his co-surety for his proportion. The court said : " An intent to prevent the extinguishment of the debt will be presumed, whenever it is the interest of the paying surety, it be kept alive. * A surety who pays his principal's debt is entitled to be subrogated to all the rights and remedies of the creditor against his co-surety in the same manner as against the principal. An actual assignment is unnecessary. The right of substitution is the substantial thing, the actual substitution is unimportant. The right of sub- stitution being shown, and the surety having paid the debt, he succeeds by Operation of law to the rights of the creditor." " A joint judgment was rendered against and H, who were the sureties of K. H replevied (stayed) the judgment, with M and others as sureties, and M had the debt to pay. Held, M was not the surety of C, who did not join in the replevin, but M having paid the debt of H, for -yvhich C was co-surety with H, if H was entitled to contribution from C, M. would be subrogated to that right, and could, through that means, recover from C.° A surety obta,ined from his principal an assignment of a mortgage as an '^Per Marshall, C. J., in Lidderdale 409; contra. Bank ». Adger, 2 Hill Eq. V. Robinson, 2 Brookenbrough, 159; (So. Car.) 2B2. holding the same view, see Hess' Bs- * Wright v. Grover & Baker S. M. tate, 69 Pa. St. 272; Howell v. Reams, Co., 82 Pa. St. 80, per Merour, J. 73 Nor. Car. 391; Croft v. Moore, 9 =Crow v. Murphy, 12 B. Mon. (Ky.) Watts (Pa.) 451; Burrows v. Mc- 444. Whann, 1 Desaussure Eq. (So. Car.) SUBEOGATION OF SUBETY WHO PATS JUDGMENT. 365 indemnity, from which he received a certain sum. The lands of his co-surety were sold to pay the debt of the principal.. Held, the creditors of such co-surety, whose liens were disappointed by such sale, had the right, with the consent of the co-surety, to be subrogated to the judgment held by the original creditor against the surety to the extent of one half of the amount thus received by him from the mortgage, and applied to the payment of the joint liabilities of the sureties.* Jiidgment was recovered against three co-sureties, and execution was levied on land belonging to each of them. Two of them paid the judgment and filed a bill to be subrogated to the lien of the levy against the land of the third. Held, they were entitled to the subrogation. The Court said the judgment was not extinguished by the payment. The English rule was different, bu't the American and better rule was that the payment did not extinguish the judgment unless such was the intention of those who paid. It was rather a purchase of the judgment, and would be so treated where equity required. "Where the intention with which the payment is made requires that the security should survive either generally or against par- ticular persons, and the situation and relation of the parties will fairly admit it, a court of equity will generally, in this country, respect the intention and treat the security as in being to the end designed, and recognize and enforce the right of subroga- tion." '■' § 270. Cases holding surety ■who pays amount of judgment entitled to subrogation thereto without assignment. — The rule that a surety who pays the debt for which he is bound is entitled to subrogation to the rights of the creditor to some extent, is recognized by all the British and American courts, but there is great conflict among the cases as to the extent to which subroga- tion will be carried. One of the most fruitful sources of such conflict, is whether the payment by a surety of the amount of a judgment rendered against the principal for the debt, extinguish- ing the judgment, so as to cut off the surety from a right to sub- rogation thereto. If the surety makes such payment with the intention of extinguishing the judgment, the payment will have that effect. But if ^nothing appears as to the intent with which the payment is made, the better opinion seems to be that the ' Moore v. Bray, 10 Pa . St. 519. « Smith v. Eumsey, 33 Mich. 183, per Graves, J. 366 , STTBEOGATIOlf. judgment is discharged so far as any benefits which the creditor might otherwise personally derive therefrom is concerned, bnt is kept alive as between all parties thereto, for the purpose of en- forcing the rights of the surety, and it will be presumed that it was the intention of the surety to keep the judgment alive, so that he may be subrogated to the creditor's rights thereunder.^ In such case no assignment nor agreement for assignment of the judgment is necessary, as the rights of the surety result from the operation of law.'' '^ov does it make any difference that the surety, when he paid, did not know that there was any right of subrogation." The levy of an execution having created an in- cumbrance on the estate of a person of unsound mind, his com- mittee enjoined the collection of the judgment. The injunction was dissolved, and the sureties in the injunction bond had to pay the debt. Held, the committee did not lose its right of priority by enjoining the debt in good faith, and the sureties in the in- junction bond had a right to be subrogated to the priority which the committee would have had if it had paid the execution.' Judgment was recovered against principal and surety, after which the principal gave absolute bail, and such bail was afterwards sued, and judgment was obtained against him for the debt. The surety paid part of the first judgment. Held, he was entitled to be subrogated to the judgment against the bail, who had " inter- posed to procure a personal advantage to the principal, and to the detriment of the surety, who might perhaps have been exon- erated had the proceedings not been stayed against the princi- pal." ' Where separate judgments were recovered against prin- cipal and surety, and land of the principal was levied on, and the surety paid the judgment against himself, it was held that such payment operated in law and equity as an assignment of the judgment against the principal to the surety, and that the sure- ty might proceed on such judgment for his own benefit." So, ' Neilson v. Fry, 16 Ohio St. 552 Eddy V. Traver, 6 Paige Ch. R. 521 Hill V. Manser, 11 Gratt. (Va.) 522 ■* Salter v. Salter's Creditors, 6 Bush (Ky.) 624. ' Bums V. Huntingdoa Bank, 1 Pen. Merryman v. The State, 5 Harris & & Watts (Pa.) 395, per Gibson, C. J. Johns. (Md.) 423; Richter v'. Cum- « Sotheren u. Reed, 4 Harris & Johns, mings, 60 Pa. St. 441. (Md.) 307; to similar effect, and as to ' Fleming o. Beaver, 2 Rawle'(Pa.> right of surety to file bill to subject 128. equitable estate of principal, see Lyon ' Dempsey v. Bush, 18 Ohio St. 376. v. Boiling, 9 Ala. 463; contra, Dow- PAYING JUDGMENT AND TAKING ASSIGNMENT. 36T where separate judgments for the same debt were recovered against principal and surety, and the surety paid the judgment against himself, and thereupon the sheriff entered satisfaction on both executions, it was held that the surety would be allowed to va- cate the entry of satisfaction on the execution against the principal, and to set up the judgment against him as a lien on his estate.' § 271. Cases holding that surety vrho pays amount of judg- ment and takes assignment thereof can enforce judgment. — If the surety, at the time he pays the amount of a judgment against the principal, take or stipulate for an assignment thereof, his in- tention not to extinguish the same is thereby manifest. And in such case, where the judgment was jointly against the principal and surety, it was held that the judgment was not extinguished, but that the surety should, as a judgment creditor, have the benefit thereof against the estate of the principal." The same thing was held where separate judgments for the same debt were rendered against principal and surety, and the surety at the time of pay- ing the judgment stipulated for, and afterwards obtained, an as- signment to himself of the judgment against the principal.' Separate suits were brought against the maker and indorser of a note, and the indorser paid the amount due, upon an agreement between him and the holder that the suit against the maker should proceed for the benefit of the indorser. Held, the maker could not in the suit against him avail himself of the payment thus made by the indorser." Where there was a judgment against principal and surety, and the creditor insisted on holding his judgment and enforcing a creditor's bill founded upon il, it was held that equity would compel him to receive payment of the debt from the surety and to assign the judgment to the surety.^ biggen v. Bourne, 2 Tounge & CoUyer '' Neal ». Nash, 23 Ohio St. 483; (Exchequer) 462; where it was held, Goodyear v. Watson, 14 Barb. (N. Y.) in such a case, that the judgment was 481; Norris v. Ham, R. M. Charlton extinguished by the payment, and a (Ga.) 267; Norris v. Evans, 2 B. Mon. court of equity refused to compel an (Ky.) 84. assignment thereof. 'Thomson «/. Palmer, 3 Richardson • Perkins v. Kershaw, 1 Hill Eq. (So. Eq. (So. Car.) 139. Car.) 344; contra, Sherwood v. Collier, ■• Mechanic's Bank v. Hazard, 13 B Dev. Law (Nor. Car.) 380; where in Johns. 353. a similar case it was held the judg- ' McDougald v. Dougherty, 14 Ga. ment against the principal was extin- 674. guished by the payment of the judg- ment against the surety. ■abb SUBEOGATION. § 272. Cases holding that payment of amount of judgment by surety extinguishes it, and prevents subrogation thereto. — ■ On the other hand, there is a class of cases which hold that where a judgment is i-endered against principal and surety, pay- ment of the amount by the surety extinguishes the judgment, and the surety can thereafter derive no benefits therefrom by means of subrogation.' This doctrine has been carried to the ex- tent of holding that the surety who paid a joint judgment against himself and his principal extinguished it, even though he did not intend to do so, and took an assignment of it to himself. The court said that the only way he could keep the judgment alive was to have it assigned to some third person." "Where a judg- ment was recovered and execution issued against the maker and several indorsers of a note, among whom was E, a mere accom- modation indorser, who paid the judgment, it was held that a court of law had no power to permit him to sue out execution against the parties to the judgment, who stood prior to him on the note. Payment extinguished the judgment at law, and he could only be subrogated, if at all, in equity.' Principal and sureties in a promissory note were sued jointly, and judgment and fi. fa. went against them jointly. The sureties paid the fi. fa., and the sheriff made an entry to that eifect on it. Held, the sureties had no right to have the fi. fa. returned and take out a ca. 'sa. and arrest the principal.'' § 273. Whether surety who pays specialty debt of principal entitled to rank as specialty creditor. — Although there is conilict of authority on this point also, the prevailing and better opinion is that the surety who pays the sealed obligation of his principal, does not, in the absence of an intention to that effect, thereby extinguish the same and become a simple contract creditor of the principal, but that he is, by reason of such payment, subro- gated to the rights of the creditor in the sealed instrumejit, and entitled to rank as a specialty creditor of the principal. In holding this principle, an able court said that the civil law, the old English authorities, and the great weight of American ■ Laval V. Rowley, 17 Ind. 36; Mor- (Nor. Car.) 366. To similar effect, see i-ison V. Marvin, 6 Ala. 797; State v. Presslar v. Stall-worth, 37 Ala. 402. Miller, 5 Blackf. (Incl.) 381; MoKeeu. ^Ontario Bank v.. Walker, 1 Hill Amonett, 6 La. An. 207;Dinkins c. (N. Y.) 652. Bailey, 23 Miss. 284. ■> Elam v. Rawson, 21 Ga. 139. ' Briley v. Sugg, 1 Dev. & Batt. Eq. SUBEOGATION OF SUEETT WHO PAYS SPECIALTY. 369 autliority, held the surety entitled to subrogation to the very place with all the rights of the creditor, while the later English cases held that payment by the surety extinguished the specialty and left the surety a simple contract creditor. " The rights of the surety in this matter depend on no subtle technicality, but upon an equity which springs out of the fact of payment, and out of his relation to the principal debtor." At common law the specialty may be extinguished, but in equity the surety is regarded as a purchaser thereof. A purchaser of a negotiable security would acquire all the rights of the creditor. How can he occupy a position in a court of equity more favorable than the surety? The surety is universally held to have the same rights as to collateral securities as the creditor, and to have the right to be subrogated to them. The principles of national justice and I'eason pass them to him. "The substitution of the surety is not for the creditor as he stands related to the principal after payment, but as he stood related to him before the payment. He is substituted to such rights as the creditor then had against the principal, one of which unquestionably was to enforce his bond against the principal, and if he was insolvent, to be let in as a bond creditor." By doing this no one is injured any move than if the creditor had himself enforced payment against the prin- cipal as a bond creditor.' As already said, there is a class of cases which hold that payment of a specialty by a surety extin- guishes it so as to prevent any subrogation thereto, and this, though the intention be not to extinguish it, and the surety take an assignment of it to himself. The general rule that the surety is entitled to subrogation to the securities held by the creditor, is admitted, but it has been said that this rule must be qualified ' Per Nisbet J. in Lumpkin V. Mills, Kendrick ». Forney, 22 Gratt. (Va.) 4 Ga. 343; holding the same tiling, see 748. Holding that a surety will be Powell's Exrs. v. White, 11 Leigh subrogated to the benefit of a recog- (Va.) 309; Davis v. Smith, 5 Ga. 274; nizance when it is not extinguished at Tinsley v. Oliver's Admr., 5 Munf. law, see Salkeld v. Abbott. Hayes (Va.) 419; ex parte Ware, 5 Eichard- (Irish) 576. As to subrogation to sonEq. (So. Car.)478; Griderc. Payne, promissory note by party who pays the 9 Dana (Ky.) 188; Shultz v. Carter, same, see Eockinghara Bank v. Clag- Spert:"s Eq. (So. Car.) 53;?. Holding gett, 2 I New Hamp. 292. To prevent that the surety will be ranked as a the bar of the statute of limitations, specialty creditor when necessary to see Smith v. Swain, 7 Eichardson Eq. his protection, and other^vise not, see (So. Car.) 112. 24 370 SUBEOGATION. " by considering it to apply to such securities as continue to ex- ist, and do not get back upon payment to the person of the principal debtor." ' § 274. Surety entitled to subrogation to all securities held by creditor — General observations — English statute. — When it is conceded that on principles of natural justice the surety who has paid the debt is equitably entitled to the securities therefor held by the creditor, it seems that the same reasons which entitle him to any of the securities entitle him to all of them. It is difficult to conceive of any equitable reason why one security for the debt should be extinguished by payment more than another; and the whole doctrine of subrogation is one of equity. A note, bond, mortgage, pledge and judgment are all equally securities for the debt, and collateral to it. If payment by the surety extinguishes one of them, why does it not extinguish them all ? The reason- ing which makes a distinction is higlily technical, and certainly has no foundation in equity. This subject has been set at rest in England by act of Parliament, which provides that: "Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty or other security which shall be held by the creditor in respect of such debt or ■duty, whether such judgment, specialty or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor in any action or other proceeding at law or in equity, in order to obtain from the prin- cipal debtor or any co-surety, co-contractor or co-debtor, as the case may be, indemnification for the advances made and loss sus- tained by the person who shall have so paid such debt or per- formed such duty ; and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him; provided always that no co-surety, <50-contractor or co-debtor shall be entitled to recover from any other co-surety, co-contractor or co-debtor, by the means afore- ' Copis V. Middleton, 1 Turner & Trustees of Athenaeum, 3 Ala. 302; Russ. 224, perLd. Eldon, C; Jones «. Bledsoe v. Nixon, 68 Nor. Car. 521, Davids, 4 Russell, 277; Hodgson d. Bucknere. Morris, 2 J. J. Marsh (Ky.) Shaw, 3 Myhie & Keen 188; Poster e. 121. SUEETT StTBEOGATBD TO MOETGAGE. 371 said, more than the just proportion to which, as between those parties themselves, such last mentioned person shall be justly liable." ' § 375. Surety who pays entitled to subrogation to mortgage given by principal to creditor for security of debt. — A surety who pays the debt of his principal is entitled to subrogation to a mortgage given by the principal to the creditor for the security of the debt,^ and he may, with ' or witliout * a formal assignment, thereof, have the same foreclosed in his own name, for his benefit. He cannot, however, usually enforce a mortgage or lien given for the security of the debt, unless he first pays the debt." A being indebted to B, gave him a chattel mortgage on certain property to secure the debt. was a surety for the same debt and was obliged to. pay it, and took an assignment of the mortgage from B. During the continuance of the mortgage, D took the prop- erty included in the mortgage and converted it, and C sned D for the property. Held, he was entitled to recover its value from D.° The surety who pays a debt secured by mortgage, will, by means of subrogation thereto, have preference over a subsequent mort- gage on the same property, given by the principal to the creditor to secure a subsequent debt.^ Thus, A mortgaged his freehold and copyhold estates to C to secure 6,000^., and B (A's daughter) by the same mortgage conveyed her freehold and copyhold estate to secure A's debt. It was provided in the mortgage that A's property should be primarily liable for the 6,000?. Afterwards A made a second mortgage on his same property to secure a fur- ther loan of 7001. made him by C. Held, C was not entitled as against B to tack his second mortgage to the first, but that B was entitled to redeem the first mortgage upon payment of the 6,000Z. 0, when he took the second mortgage, had full knowl- edge of all the facts, " and, therefore, he could only take subject to such rights as the daughters had acquired by reason of their 'Mercantile Law Amendment Act, * McLean v. Towle, 3 Sandf. Ch. R. 19 & 20 Viot. c. 97, sec. 5. 117. "Goesia ». Brown, 11 Pa. St. S27; » Conwell w. McCowan, 53 lU. 363; Jacques v. Packney, 64 111. 87; Copis Lee v. Griffin, 31 Miss. 682. V. Middleton, 2 Turner & Russ. 224; « Lewis v. Palmer, 28 New York, Pawcetts V. Kimmey, 33 Ala. 261 ; Mil- 271. ler V. Pendleton, 4 Hen. & Munf . (Va.) ' To this general effect, see National 436. Exchange Bank v. SiUiman, 65 New 'Norton v. Soule, 2 Greenl. (Me.) York, 475. 341. 372 SUBROGATION. having concurred in the former deed. Ifow, it is quite clear that a surety paying of the debt of his principal, is entitled to a transfer of all the securities held by the creditor, in order that he may make them available against the debtor as the original creditor might have done. * The equity gives to the surety a right to call for a transfer of the securities, and so binds those securities into whatever hands they may come, with notice of the charge." ' So where a surety, on a note secured by mortgage on the land of the principal, paid the note, and the creditor, without the assent of the surety, entered satisfaction of the mortgage, so as to leave the same subject to the lien of a subsequent judgment recovered by the creditor against the principal, and proceeded to levy the same upon the land, it was held that the mortgage having been given to secure the debt, was as much for the benefit of the surety as the creditor, and the surety having paid the debt, was entitled to the beneiit of the mortgage to the extent of his payment, and this right was prior to the lien of the judgment, and the land having been sold under a power in a prior mortgage, leaving a surplus, the surety was entitled to receive such surplus to reim- burse himself for what he had so paid." A having obtained from B the advance of money, conveyed certain lands by way of mort- gagp to secure the amount. C as surety for A, conveyed a charge of 5,000Z. further, to secure the debt. The proviso of redemption was conditioned, that if ,A or C, or either of them, should on a day therein named, repay B the sum borrowed, B would re-convey the lands and charges on the uses on which they had been held before the execution of the deed. The period of redemption having expired, the debt was paid out of C's charges. Held, that notwithstanding the form of the proviso of redemption, was entitled to the benefit of B's securities on A's lands.' "Where one of two joint sureties, holding a mortgage on property given to them jbintly by the principal for their indem- nity, pays a part of the debt, and releases a part of the mortgaged property, the other surety may oppose the value of the property released to that amount of the claim against him for contribution. The co-surety who makes such payment, ac- 'Bowker v. Bull, 1 Simons (N. S.) ''City National Bank of Ottava v 29, per Lord Cranworth, V. C; to Dudgeon, 65 111. 11. contrary eifeot, see Williams v. Owen, 'M'Neale v. Reed, 7 Irish, Ch. Rep. 13 Simons, 597. 251. IKDEMNITOK 03? SUEETY. MAESHALING- ASSETS. 373 quires in equity an exclusive right to that amount of the property mortgaged for their security.' P made a mortgage to R to in- demnify him as surety for several debts. For some of these debts M became bound as P's surety, and thereby released E from such debts as he (M) became bound for. There did not appear to have been any agreement for an assignment of the mortgage to M, and if there was such an agreement it had not been carried out. Held, that to tlie extent that M became bound and released R, the lien of the mortgage v^as extinguished, both as to R and the creditor, and therefore M could not as to such debts be sub- rogated to it.' § 276. Indemnitor of surety who pays debt entitled to subro- gation — Subrogation against third parties Tvith notice — Marshal- ing assets — Vendor's lien, — A party who agrees to indemnify a surety against loss by reason of his obligation as surety, and who afterwards pays the debt for which the surety is bound, is en- titled to subrogation, the same as the surety would have been if he had paid the debt. His equities are the same as the sureties would have been, and the payment by him is not in such case voluntary.'' A surety being entitled to the benefit of all the seeureties for the debt which are available for his indemnity, a person taking any of such securities from the principal, with no- tice of the, facts, is bound in equity to hold them for the indem- nity of the surety, and subject to all the equities which the sure- ties could originally enforce. Where there are a first and second mortgage on real estate to secure debts due different parties, and a surety for the debt secured by the first mortgage pays it, but the holder of the second mortgage, with knowledge of the first mortgage, gets the legal title, such surety has to the extent of the amount paid by him a priority in the land over the holder of the second mortgage.'' Equity will not marshal assets to the preju- dice of a surety so as to destroy his right to subrogation. Thus, A was indebted to B, and placed in his hands property to pay the debt, and C also mortgaged his land to secure the same debt. B 'Roberts v. Sayre, 6T. B. Mon.(Ky.) indemnity should be assigned to him, 188. ' see Brien v. Smith, 9 Watts & Serg. ''Hunter v. Richardson, 1 Duvall (Pa.) 78. (Ky.) 247; to a contrar;, effect, ^Rittenhouse v. Levering, 6 Watts where a third person paid the debt & Serg. (Pa.) 190. for which, the surety was liable under ■'Drewji. Lockett, 82 Beavan, 499. an agreement that the mortgage for 374 SUBEOGATION. obtained judgment for the debt against A, and other creditors of A obtained siibsequent judgments against him. The subsequent judgment creditors filed a bill to have the secureties marshaled, and sought to have B's debt satisfied out of the premises mort- gaged by C. Held, they were not entitled to the relief. If C had paid the debt, he would have been entitled to subrogation to B's judgment against A, and moreover, if the marshaling was allowed, the effect would be to compel C to pay the subsequent judgment creditors.^ Two judgments were recovered for the same debt, one against A, the principal, and the other against B, a surety, which became liens on the land of each of them. After- wards B mortgaged a piece of land to 0, and afterwards D re- covered a judgment against A. Then D purchased the judg- ments against A and B first mentioned, and sold property of A on the last judgment, more than enough to satisfy the first judg- ments and applied the money to the payment of the last judgment. Dthen levied an execution issued on the first judgment against B on the land mortgaged to C. Held, that C's equity in the mortgaged premises was superior to D's. The property of A was the primary fund for the payriaent of the first judgments, and after D bought the judgments he stood in the place of the original holder, and must apply the money realized from the sale to the payment of the first judgments, which were a first lien on- the land of A." As the surety by means of subroga- tion stands in the very place of the creditor, he cannot occupy any better position than the creditor did at the time the debt was paid to him.' Where a party bought a piece of land and gave a note for the purchase money with a surety on the note, and the land was conveyed to the purchaser by deed, and no mortgage was taken to secure the note, it was held that the vendor by tak- ing the note with surety had waived his vendor's lien, and the surety could not by suit in chancery have the land sold and ap- plied to the payment of the debt, so as to cut ofl^ subsequent judgment creditors of the principal.' Where land is sold and the purchaser gives bond with surety for the paymentof thepur- ' Joseph «. Heaton, 5 Grant's Ch. R. 463. To similar effect, see Miller v. 636. Miller, PhiUips Eq. (Nor. Car.) 85; see, ^ "Wise V. Shepherd, 13 111. 41. also, Henley v. Steramons, 4 B. Mon. 'Houston V. Branch Bank at Hunts- (Ky.) 131 where it is' held that pay- ville, 25 Ala. 250. mont by a surety extinguishes a ven- '' Bradford Admr. v. Marvin, 2 Fla. dor's lien. SUBEOGATION OF SHEEIFF's SURETIES. 375 chase money, and the title is retained as a further security for its payment, the surety for the original purchase money has the first equity to be indemnified, and his claim is preferred to that of a purchaser of the equity of redemption at a sheriff's sale or of any subsequent incumbrancer.' § 377. Subrogation of sheriff 's sureties. — Where a sheriff sold land on a decree of partition, and took a note for the purchase money, and his sureties were obliged to pay the heirs the money for which the land sold, it was held that such sureties were enti- tled to be subrogated to all the rights in the note which such heirs had, and to prosecute a- suit in the name of the sheriff, and have the proceeds of the note.'' Where a sheriff falsely returned that he had made an execxition, and one of his sureties paid the plaintiff in execution the amount thereof, it was held that he was entitled to have the sheriff's return set aside, and a new execution issued against the defendant in the judgment, although the sher- iff had confessed a judgment in favor of his sureties for a sum including the above inentioned sum paid by the surety, but such judgrrient had not been paid.' Execution was issued against A, and placed in the hands of the sheriff, who failed to make due return, and judgment was therefore rendered against the sheriff and his sureties for the amount of the execution, which, the sure- ties paid: Held, they were entitled, without obtaining any judg- ment, to file a bill to be subrogated to the rights of the creditor in the judgment against A, and to enforce such judgment against certain effects of A liable thereto. The court said: "This right of substitution subsists in favor of a person who is compelled to pay the debt of another in order to protect his own interest." * A sheriff appointed a deputy, who gave bond with surety, and col- lected money and used it. The sureties of the sheriff were obliged to pay the money thus collected, and the sheriff being in- solvent, it was held that they were entitled to file a bill against, and obtain indemnity from, the surety on the bond of the deputy for the money thus paid by them.' A recovered a judgment 'Shoffner v Fogleman, Winston ^Bittick u. Wilkins, THeisk. (Tenn.) Law & Eq. {Nor. Car.) 12. On same 307, per Deadrick, J. To contrary- subject, see Glaiselin v. Fergusson, 4 effect, see Stout v. Dilts, 1 Southard Harris & Joins. (Md.) 522; Burk v. (N. J.) 218. Chrisman, 3 B. Mon. (Ky.) 50. 'Brinson v. Thomas, 2 Jones Eq. = Sweet, Admr. W.Jeffries, 48 Mo. 279. (Nor. Car.) 414; Blalock v. Peake, 3 Saint V. Ledyard, 14 Ala. 244. Jones Eq. (Nor. Car.) 323. 376 SUBROGATION. against B, and execution was issued and delivered to tlie sheriff, who levied on a county order as the property of B, and turned the same over to A, who credited the execution for that amount. C sued the slieriff and his sureties for the order, claiming that it was his, and recovered, and the sureties paid the judgment against them and the sheriff, and sued A for the amount of the order: Held, they were entitled to recover. The order belonged to C, and he might have sued A for it instead of the sheriff and his sureties, and it was proper that the sureties who had paid the value of the order, should be subrogated to the claim of C against A, and permitted to enforce it.' § 278. Subrogation of suieties of administrator and of county and city treasurer. — Where an administrator being about to leave the state, deposits the assets of the estate with a person in trust, that he will pay the next of kin of the intestate, the sureties of such administrator, who have been obliged to pay judgments recovered against them by the next of kin, liave a right to call upon the trustee for the assets so received by him, and have a right to be subrogated to the rights of such of the next of kin as have made them responsible.'' Where an admin- istrator pays debts of the intestate, to an amount exceeding the assets, he may subject the real estate in the hands of the heirs to his reimbursement, and the surety of an administrator who has so disbursed his funds, may be subrogated to the rights of his principal.' Where the note of a deceased debtor was paid by the note of his administratrix, and both notes were indorsed by the same surety, who was obliged to pay the last note, it was held that such surety could not by suit in chancery, enforce the first note against the estate of the principal, as it had been paid and extinguished. But if the estate was in any manner indebted to the administratrix, the surety might, by reason of his suretyship for the administratrix, reach the estate in that way to the amount of such indebtedness." The law provided that a county treasurer should give two bonds, one to the state, and one to the county, and this was done. The county was by law liable to the state, for money collected by the treasurer for the state. The treas- ' Skiff V. Cross, 21 Iowa, 459. 419; see, also, Schoolfield's Admr. v. ' Kennedy ;;. Pickens, 3 Ired. Eq. Rudd, 9 B. Mon. (Ky.) 291. (No. Car.) 147. < Brown v. Lang, 4 Ala. 50. 'Taylor v. Taylor, 8 B. Mon. (Ky.) SUBROGATION OF S0EETY FOE PAET OF DEBT. 377 urer became a defaulter to the state, and the county paid the amount of the defalcation. Held, the county was entitled to recover against the sureties on the bond to the state.^ Certain parties became the sureties of a city treasurer. The treasurer deposited a large sum of money in a bank, which belonged to the city, and for \yhich it might have sued the bank. The treas- urer made default, and the sureties paid the amount of the defal- cation, and claimed to be subrogated to the rights of the city against the bank. It was contended that they could only be sub- rogated to the rights of the city against the treasurer, but the court held them entitled to subrogation to the rights of the city against the bank, and said, " The equities of sureties to subroga- tion extends not only to the rights of the creditor as against the principal, but to all rights of the creditor respecting the debt which the sureties pay." § 279. Surety for part of debt no right to subrogation to securities for another part of same debt — Similar oases. — A suretj' for a part of a debt is not entitled to the benefit of a secur- ity given by the debtor to the creditor at another time for a sep- arate and distinct part of the same debt.^ Defendants lent A at the same time two sums, one of 2,00.0Z. and one of 3,000Z., each on separate and distinct securities, and the plaintiff was surety for the 2,000^., but not for the other sum. Held, that the plaintiff on paying the 2,000Z. was not entitled to have the securities there- for transferred to him until the 3,000?. also were paid. The court said, that as against the principal it was well settled that the creditor could tack his claims and retain all the securities till the 3,000?. were paid. A surety upon paying the debt is entitled to all the securities held by the creditor, " provided the creditor has no lien upon them or right to make them available against the principal debtor, to enforce the payment of a debt different from that which the surety has paid. But if the creditor has such a right and one arising out of the transaction itself, of wliich the suretyship forms a part, then the right of the surety to the bene- fit of these securities is subordinate to the riglit of the creditor to make them available for the payment of his other claims, and can only be made available after the paramount right is satis- ' Elder v. Commonwealth, 55 Pa. St. " City of Keokuk v. Love, 31 Icwa, 485. 119. ^ Wade V. Goope, 2 Simons, 155. 378 SUBEOGATION. fied." ' A being indebted to B, lodged several securities with him as collateral for that debt; A afterwards borrowed a further sum of money from B, for which became his surety, biit there was no express agreement that the securities already deposited should cover the latter advance. A became bankrupt, and B called upon C to pay the second debt. The securities in the hands of B were more than sufficient to pay the first debt, and it was held that C sbould be allowed the surplus in reduction of the second debt." § 280. When surety subrogated to creditors' right to set aside fraudulent conveyances by principal — Other cases. — Where prin cipal and surety were liable for a debt and the principal conveyed certain slaves without consideration, and the surety was afterwards obliged to pay the debt, it was held that he had the same right to file a bill to set aside the conveyance of the slaves as fraudulent, that the creditor had before payment by the surety.' It has been held that two co-sureties who have paid the debt of the principal, may jointly file a bill to be subrogated to a lien of the creditor, for the debt on land of the principal." It has also been held that a surety who contests his liability, and a trustee to whom prop- erty has been conveyed for the indemnity of such suretj'^, cannot be joined as defendants in the same suit.' A gave a mortgage to B, who was his surety on a note, to indemnify him from loss as such, which mortgage was conditioned to be void if A should pay or satisfy the note by renewal or otherwise. A renewed the note with different sureties, and B assigned the mortgage to the new sureties. Before such assignment A had mortgaged the premises to C. Held, that was entitled to hold the property. The first mortgage became functus officio and had performed its office by its terms when the note was renewed. A new mortsase then given would not have taken precedence over the mortgage given to C, and an assignment of the old one gave no greater rights." 'Farebrother v. Wodenhouse, 23 Ala. 198, it was held that a surety who Beavan, 18, per Sir John Romilly, M. paid a judgment against himself and E. To the effect, that surety who principal, extinguished the judgment, pays the bond of himself and princi- and that he could not file a bill to set pal is entitled to suborgation to former aside a fraudulent conveyance by the bond for same debt given by principal, principal without first getting a judg- see Hodgson v. Shaw, 3 Myhie & Keen, ment against him. 183. "Kleiser v. Scott. 6 Dana (Ky.) 137. ' Praed v. Gardiner, 2 Cox, 86. ' People v. Skidmore, 17 Cal. 260 *Tatum V. Tatum, I Ired. Bq. (Nor. « Bonham v. Galloway, 13 111. 68. Car.) 113. In Sanders v. Watson, 14 SrBEOGATION AS AGAINST SPECIAL BAIL. 379 A as principal and B as surety executed a bond to C, conditioned to make a title to land on payment of the purchase money. Be- fore the purchase-money was all paid, the land was sold at sheriff's sale, to satisfy executions against A who became insolvent. sued B for a failure to make title to the land, and recovered. Held, that B, to the extent of the money thus paid by him, had a right to follow the land into the hands of the purchaser at sheriff's sale. He was entitled to subrogation to the right which had to file a bill for specific performance, and follow the land." § 281. 'When surety not entitled to subrogation as against special bail of the principal for the same debt — Other cases. — Separate suits on a bond were brought against the principal A and the surety B, and A was held to bail, and gave as surety in the bail bond. D bought the judgments which were recovered in the suits, and was about to proceed against B, when he filed a bill and offered to pay what remained due on the judgment against him, and claimed to be subrogated to the rights of the creditor against C. Held, the right of subrogation did not exist, as had not been fixed as bail when B offered to pay the judgment." A, B and being joint surities, judgment was rendered against them, which became a lien on the land of each. Afterwards A sold his land to D, and B and C became insolvent, and sold their land to F. Execution was issued by the creditor and levied on the land purchased by D, who paid the entire debt, and requested the creditor to assign the judgment to him, which request was refused.- D then tiled his bill against the creditor, and B, and F, to subject the the land sold by B and C to F, to the payment of two-thirds of the debt paid by ' Freeman v. Mebane, 2 Jones, Eq. funds of the firm in his hands sufEcient (Nor. Car.) 44. For other case^ of to pay the debt, before proceeding surety's right to subrogation, see Silk against property conveyed by dead I/. Eyre, Irish Rep. 9 Eq. 393; Wright partner in his life-time, as indemnity V. Morley, 11 Vesey, 12. Holding that for his surety, see Newsom v. McLen- an accommodation acceptor of a bill don, 6 Georgia, 392. As to right of of exchange is not, under certaiu pecu- guarantor who pays debts of a firm to liar circumstances, entitled to subroga- come on property bought by one part- tion to mortgage for indemnity of ao- ner with supposed profits of the firm, commodation indorser of same bill, see see Greene's Exrs. v. Ferrie, 1 Desaus- Goraez «. Lazarus 1 Dev. Eq. (Nor. sure, (So. Car.) 164. Car.) 205. Holding that a creditor of ^ Creager v. Brengle, 5 Harris & a partnership can be compelled to pro- Johns. (Md.) 234. ceed against surviving partner, who has 380 STJBEOGATION. him, and it was held he was entitled to the relief sought. The Court said: " While he would have no redress at law in such a case, equity in furtherance of justice, will subrogate him to the rights of his grantor, and charge the land bound by the lien in the hands of the other sureties, or their grantees, who purchased with notice." ' Judgment was recovered against principal and surety for $1,900. Property of the surety was sold on execution, which realized $815.93, which was applied on the judgment. Afterwards the property of the principal was sold, and realized enough to pay the balance of said judgment, and all other judg- ments, against the principal of prior or equal date, and left money enough in the hands of the creditor to repay the surety the amount realized from the sale of his property. Held, that the surety's right to this money was superior to the right of the creditor to retain it to pay a subsequent debt due by the prin- cipal, to the creditor." § 282. 'When creditor entitled to securities given by principal to surety for his indemiiity. — As a general rule, where a surety, or a person standing in the situation of a surety, for the payment of a debt, receives a security for his indemnity, and to discharge such indebtedness the principal creditor is in equity entitled to the full benefit of that security, and it makes no difference that such principal creditor did not act upon the credit of such secur- ity in the first instance, or even know of its existence. The authorities place the principle upon the ground that as the secur- ' Fumold V. The Bank of the State chase money who has paid the same, of Missouri, 44 Mo. 386. see Rush v. The State, 20 Ind. 432. ^ Hardcastle v. Commercial Bank, 1 For, a case deciding that under Its pe- Harrington (Del.) 374; National Ex- culiar circumstances the holder of a change Bank v. Silliman, 65 New bill could not be subrogated to a mort- York, 475. Holding that a creditor of gage given for the indemnity of an ac- a surety is entitled to be subrogated commodation acceptor, see St. Louis to a judgment which the surety's prop- Building and Savings Assn. v Clark, 36 erty has paid, in preference to a sub- Mo. 601. Tor a peculiar case, in which sequent creditor, to whom the surety a surety was held entitled to subroga- h'as assigned his right to subrogation, tion to a mortgage given by the prin- see Huston's Appeal, 69 Pa. St. 485, cipal after the surety became hable, overruling Harrisburg Bank v. Ger- and after another mortgage on the man, 3 Pa. St., 300. For a questionable same property for a less number and case, holding that the equity of a pur- aggregate amount of debts had been chaser from a purchaser of land who canceled, see Cory v. Leonard, 56 New had no: paid for it, has a prior claim York, 494. on the land to a surety for the pur- CEEDITOE ENTITLED TO INDEMNITY GITEN SUEETT. 381 ity is a trust created for the better securing of the debt, it at- taches to it, and hence it is that it may be made available by the creditor, although unknown to him." ' The right of the creditor is the same when the security is a mortgage or other lien given the surety by the principal after the principal and surety have both become bound, even though there may have been no previous agreement that indemnity should be given.' To entitle the creditor to enforce this right in equity, it is not necessary that he should have exhausted his remedies at law, or have reduced his debt to judgment.' A mortgage given by the principal maker of a promissory note to his surety on the note, conditioned that the principal will pay the note and save the surety harmless, creates a trust and lien which subsists after the creditor's claim on the surety for payment of the note is barred at law by the statute of limitations, and though the fee of the mortgaged property has by foreclosure become vested in the surety. The trust, which in- ares to the benefit of the creditor, subsists till the debt is paid, and may be enforced against any one who takes the property with notice." After a trust of this kind has been created, it cannot usually be defeated without the consent of all parties in interest, unless it be by a conveyance to a lonafide purchaser without no- tice." Special circumstances may create an exception to this rule. Thus J mortgaged certain real estate to B, to indemnify him for drafts which he accepted as J's surety. Afterwards B mortgaged to Q all his interest in the property mortgaged to him for indem- nity, to secure a loan made by Q to J. It was the intention of ' Kramer & Rahm's Appeal, 37 Pa. 'SafFold v. Wade's Exr. 61 Ala. 214; St. 71 per Thompson, J. ; Curtis v. Ty- Kinsey v. MoDearmon, 5 Cold. (Tenn.) ler, 9 Paige Ch. R. 432; New London 392. Bank v. Lee, 11 Ct. 112; Rice's Appeal, *Eastman v. Foster, 8 Met. (Mass.) 79Pa. St. 168; O-wensu. Miller, 29Md. 19. Explaining above, and refusing 144; Seibert v. True. 8 Kansas, 52; relief to creditor where there was still Saylors v. Saylors, 3 Heisk. (Tenn.) a debt due from principal to surety, see 525; Seibert v. Thompson, 8 Kansas, First Congregational Society v. Snow, . 65; Branch ». The Macon & Brunswick 1 Gush. 510; to same effect as East- R. R. Co. 2 Woods, 385. man v. Poster, where principal con- ' Paris V. Hulett, 26 Vt. 308; Darst veyed property to trustee, for indem- V. Bates, 51 111. 439; Saylors v. Say- nity of surety, see CuUum v. Branch lors, 3 Heisk. (Tenn.) 525; Burroughs Bank at Mobile, 23 Ala. 797. V. United States, 2 Paine, 569; Haven 'Ross v. Wilson, 7 Smedes & Mar. e. Foley, 18 Mo. 136; Troyo. Smith, (Miss.) 753; Carpenter v. Bowen, 42 33 Ala. 469; Vail v. Foster, 4 New Miss. 28. York, 312. 382 STTBEOGATIOH'. all the parties to tlie transaction to give Q a first lien on the premises. J and B were 'then both solvent, but afterwards failed, at which time the debt of Q was unpaid, as were the acceptances of B under the original mortgage. -Certain holders of such ac- ceptances filed a bill against Q to subject the mortgaged premises to the payment of the acceptances held by them. Held, they were not entitled to relief The first mortgage was made for the personal security of B, and while J" and B were solvent no equities arose in favor of the acceptors, and while no such equities existed, B had a right to surrender the security or make such disposition of it as he saw proper.' § 283. When creditor entitled to securities given by prin- cipal to surety for his indemnity. — If the principal confesses a judgment in favor of the surety, for his indemnity, and the sure- ty afterwards dies, and his estate is thereby discharged from lia- bility, it has been held that the creditor is nevertheless entitled to the benefit of the judgment.* Where a principal mortgaged property to a surety, for his indemnity, and also to secure a debt due the surety and the surety afterwards became insolvent and assigned all his efiects, it was held that the creditor (to indemnify the surety against whose debt the mortgage had been given) was entitled to a preference in the mortgaged premises, over the as- signee holding the debt due from the principal to the surety, also secured by the mortgage.' A mortgage was given a surety, by the principal, to secure him against loss, on account of several claims for which he was surety, and also to secure a debt due the surety by the principal. The surety was discharged from his lia- bility as such, by time given the principal. Held, that the pro- ceeds of the mortgaged' property should be applied jpro rata to the payment of all the debts." A being the surety of B in two obligations, B entered into a bond, with C as his surety, conditioned to save and keep harmless A, on account of his suretyship, and to ' Jonea v. Quinnipaick Bank, 29 Ct. "TenEyck «. Holmes, 3 Sandf. Ch. 25. R. 428. To a similar effect, and hold- ' Crosby e. Crafts, 5 Hun. (N.T) 327. ing that the right of the creditor to the To a similar effect, and holding that security does ndt depend upon the lia- siirety may, before paying the debt, as- bility , of the surety to be damnified, see sign such a judgment to the creditor, Ohio Life Ins. Co. v. Ledyard, 8 Ala. and that the creditor may enforce it, 866. see Bank v. Douglass, 4 Watts (Pa.) *Helm's Admr. v. Young, 9 B. Mon. 95- (Ky.) 394. t OEEDITOE ENTITLED TO INDEMNITY GIVEN SUEETY. 383 obtain his release from the two obligations. A was sued on the obligations, and judgment was recovered against him, and he be- ing insolvent, the bond of indemnity was assigned to the creditor, and he sued C on it, claiming that it was a fund in the hands of A for the payment of the debt, which he was entitled to reach. The court said that the bond of indemnity was not given simply for the personal indemnity of the surety, for the release of the two obligations could not be obtained without the consent of the creditor, and as the two obligations had not been released, it was held the bond of indemnity was forfeited, and the creditor might recover on it against C* When a mortgage, given by a princi- pal to his surety for indemnity, is informally assigned by the surety to the creditor, such assignment will be upheld in equity." A guarantied the debt of B by parol, and B placed in A's hands, collaterals for his indemnity, from which A realized a sum in money.. The creditor sued A for the debt. Held, he could not recover on the guaranty, because of the statute of frauds, but could recover for money had and received, to the extent of the money received by A as above.^ Where joint judgment is re- covered against principal and surety, and the lands of the princi- pal are sold at sheriff's sale, and the proceeds applied to the pay- ment of such judgment, the judgment creditors of the surety have an equity to be subrogated, as against the principal, to the debt thus created against the principal and in favor of the surety, and to the lien of the judgment against the principal and surety, and to have priority of claim in the order of their respective judgments to the extent that they were deprived of the proceeds of the surety's lands by reason of the judgment against the principal and surety. " Where the joint debt ought to be paid by one of the debtors, a court of equity will so marshal the securities as to compel the joint creditors to have recourse to that debtor, so as to leave tlie estate of the other open to the claims of his individual creditors; or, if the joint creditor has already appropriated the latter fund, it will permit the several creditors to come in jyro tanto, byway of subrogation, upon the fund which ought to have paid the joint debt."* Where a debtor conveyed to trustees certain property for the indemnity of various sureties of his who were bound for 'King V. Harman's Heirs, 6 La. 'Jack v. Morrison, 48 Pa. St. 113. (Curry) 607.