учебный год 2023 / Child, Handbook of the law of suretyship and guaranty
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INDEX. |
541 |
['I'h•llcuree refer to pape.] |
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OFFICER-Cont'd. |
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public, what Is, 367. |
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notary public and attorney, 367 (note 1). |
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no contract with, |
368. |
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duties fixed by law, 368.
holds himself out as possessing ability to perform duties. 370.
O.B'FICIAL BOND,
see, also, "Bond"; "OtDcer"; "Statutory Bond:'; "Volnn· tary Bond."
definition, 867.
omcer liable without, 43.
not required by common law, 368. form or, 403, 407.
filing, 36.
failure as to, may vacate omce, 368. may be withdrawn prior to acceptance, 84. approval or, 31.
may cover prior acts If delivered after beginning or term, 220. signatures added to existing, 220 (note 456).
duration of surety's liability on, Indefinite, 1f Irrevocable, 119, 189,
191, 193.
prepared for one term, and not used, cannot be used for next, 188 (note 297).
termination or surety's liability on, by new bond, 102, 199, 202. void, If extorted from principal, 74 (note 231). See, also, "Du·
ress."
execution of by sureties under Illegal agreement, 811.
sureties liable on, though omce abolished before principal's election, 263.
sureties estopped to deny election or appointment of principal, 261,
262.
or de fncto omcer, Is enfol'cenble, 263.
sureties |
liable, though principal did not take oath, 263, 368 |
(note |
3). |
sureties discharged by extension of term or principal, 100, 100. acts for which sureties are liable on, 367-373.
colore omcll and virtute omcll, 368.
failure or principal to perform duty, 370, 371 (note 16). performance or lawful act Improperly, 370. performance or unlawful act willfully, 370.
falsification or accounts, 221.
does not cover duties not within scope, 211.
does not cover acts by principal as agent, 211, 372.
-does not cover defaults In private transactions of principal, 372, 373.
542 INDEX.
[The tsurea refer ta papa.J
OFFICIAL BOND-Oont'cL
tor general duties does not cover duties tor which a special bond has been given, 199.
surety not liable tor aets of principal outside locality, 213. liability of sureties tor errors of judgment by prlnclpaJ, 216, 371. Uablllty of sureties tor acta of deputies, 373.
liability of sureties tor judicial officer, 87()-372.
liability of surety on, atter bls discharge In bankruptcy, 288. See, also, "Bankruptcy."
statute of limitations, when begins -to run against surety on, 240. See. also, "Statute ot Limitations."
funds covered by, 123, 124, 211, 214, 270, 274. See, also, "Funds." sureties not liable tor statutory penalties, 271.
cannot be enforced In favor of a surety thereon, 257. bow action on, should be brought, 257.
surety on, In force at time of principal's default, Is llable, 192. entries by principal are evidence· ot breach of, 275.
sureties on, presumed to be co-sureties, 821. sureties on different, may be co-sureties, 321, 822.
OMISSION,
see, also, "Negligence"; "Default"; ".Mistake"; "Reformation";. "Error."
ot penalty, renders bond Invalid, 120. ot terms, court will not supply, 120.
OPEN GUARANTY,
see, also, "Guaranty." definition, 20.
OPERATION OF LAW,
see "Act of Law" : "Involuntary"; "Bankruptcy"; "Statute of Limitations" ; "Incapacity"; "All~n Enem7."
OPINION,
see, also, "Fraud." Is not a guaranty, 127.
ORAL EVIDENCE,
see "Evidence" ; "Statute of F£auds."
ORDINARY INDORSER, see "Indorser."
OWNER,
see "Building Contract''; ''Obligee."
p
PARDON,
ot principal, when ball discharged by, 400.
PART PAY.MEJ'.'T,
see ''Payment"; "Consideration"; "Installment.."
Digitized
INDBIX.
[The llpree refer to pap~,]
PARTIES,
see, al110, "Indemnity"; "Contribution." competency ot, 24. See, also, "Incapacity." change as to, In appellate court, 380 (note 26).
to foreclosure of mortgage by guarantors, 318 (note 164). to subrogation, 288. Bee, also, "Subrogation."
PARTNERS,
see, also, ".Assumptlol\"
suretyship arising from changes among, 17.
extension of time to one who assumes debts ot, discharges others, 172 (riote 204).
subrogation against, by retiring partner, 281. See, also, "Subrogation."
authority ot one to bind the firm, 77, 78.
promise by one, as to firm debt, not within statute ot frauds, 102. guaranty by, revoked by change In number, 194, 208.
making payment as sureties, can join In suit against principal for Indemnity, 304.
as co-sureties, extent ot llablllty tor contribution, 334. unauthorized signature of firm by one, 44 (note 83), 80. surety tor, effect ot change among, 186, 209.
when surety tor one can recover trom the firm, 300.
surety for one, cannot apply firm tunds to debt, 297 (note 29). cannot enforce bond given to one, ZJ6 (note 666).
special guaranty addressed to firm or member, 2:>9. cannot hold surety after change In number, 205.
surety estopped to deny legal existence ot partnership, 261, 264.
PAST CONSIDERATION,
see "Consideration" ; "Forbearance."
PATENT RIGHT,
fraudulent sale ot to principal, 255.
PAYMENT,
see, also, "Performance."
subrogation on payment, see "Subrogation." guaranty or, see "Guaranty."
what constitutes, 242, 292, 300, 325, 330.
giving negotiable Instrument, 215, 248, 300, 825 (note 28), 880, 887. nonnegotiable Instrument Is not, 801 (note Ml), 330.
bank notes, 330 (note 61).
giving property, 242, 300, 812, 880, 841. giving mortgage, 880 (note 61). confessing judgment, 880 (note 61). Imprisonment, 244, 301.
collection of Insurance money by creditor Ia not, 244 (note 599). by surety's agent, ratlfi<'ntlon, 299.
discharges surety, 242, 245.
INDEX.
[The llcurea refer to page&.]
P.AYMENT-Cont'd.
of proportionate part does not discharge surety, 243.
with borrowed money gives lender no rights against surety, 245. lllegal, surety not discharged, 2«.
part, suspends running of statute ot Umltatlons, 241. application of, 246-247.
voluntary, 308.
by surety, cannot recover from principal, S06, SOS. cannot have contribution, 340, 342.
what Is, 310, 342.
what Is not, 298, 308, 309, 328 (note ~. 343. as to part ot the debt, 308.
•by surety with knowledge of facts, cannot be recovered from creditor, 2W (note 664).
cannot be recovered after reversal of judgment against principal, 243 (note 589).
Involuntary, su1Dclent, 300, 341. from joint fund, what Is, 304, 337. by ball, effect, 389.
by surety, recovery from principal, 292, 294, 298, 301, 303. as a defense by principal against surety, 306, 312.
by a co-surety, lnsutficlent, 315. by co-surety, contribution, 328, 331.
presumed to be as an Individual, 304 (note 76). not obliged to give notice of, 329.
lack of, as defense to contribution, 340, 341. as defense to contribution, 340, 343.
of mortgage by one party, liability for contribution, 334. alteration as to, see "Alteration."
of part of debt, when consideration for an extension of time, 182. no consideration for release, 248 (note 626).
of Interest In advance by surety, Implies consent, 155 (note 104). possession of note Is evidence ot, 298 (note 45).
when sureties for a personal representative are llable for his failure to make, 376, 377.
obligee being called upon to make, when a breach of bond, 217. of mortgage Is not guaranteed by guaranty of payment of deficien-
cy, 222.
when surety discharged by creditor saying that there has been;
265, 266.
by obligee may prevent the contingency against which a bond was given, 211.
PENALTY, definition, 119.
bond without, Is void, 4G, 120.
where two amounts named as, lesser governs, 1:W.
more or less than statute requires, does not Invalidate bond, 74. each surety liable for, 267.
INDEX. |
545 |
[The llcurea refer to pagea.)
PENALTY-Cont'd.
when sureties liable tor, 261, 271, 400. liability of surety In excess of, 266, 267, 269. judgment given for tuH amount or, 267.
PERFORMANCE,
see, also, "Change."
surety discharged by, 3, 210, 394. by principal, discharges surety, 211. presumed, 211.
In the alternative, 216.
when excused by act ot creditor or obligee, 210, 217, 219. Impossibility or, by act of law or by the publlc enemy, 233 (note
580).
publlc ofllcer holds himself out as capable of, 870. as to duties, 211, 212, 370.
default must relate to service, 204.
covered by a special bond, surety on general bond not llable tor, 192, 199.
by deputies, 74 (note 232).
not excused by slekness of public officer, 371 (note 1H). as to time, 186, 213. See, also, "Time."
as to place, 213, 296.
alteration as to, 161, 164. See, also, "Alteration." as to amounts, 211, 214. See, also, "Funds."
by payment, 243. See, also, "Payment:"
surety not liable beyond lesser of two penalties In bond, 12lS. surety not liable tor funds outside scope of ofllce, 123, 124.
ot guaranty of payment, 215.
ot conditions, necessary to bold surety or guarantor, 204, 210, 218 (note 442), 221.
to entitle creditor to subrogation, 290. after time passed, lnsufllclent, 222. annexed to extension of time, 116.
not excused because |
no Injury results from nonperformance, |
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223 (note 478). |
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to enforce defense of bankruptcy, 238. |
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when |
Impossible, |
120. |
what |
Is, of bond to turn over building tree from liens, 211. |
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waiver of, 221.
surety on contract that principal would not leave, not llable tor defalcation, 211 (note 400).
as a defense by principal against surety, 312.
construction of contract governed by place of, 131. See, also, "Construction."
of agreement between creditor and principal necessary to dla- r.harge, surety, 233 (note 530),
CHILDS' SURETYSHIP-35
546 |
INDmX. |
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[The l!curea refer to pacea.J |
PERSONAL REPRESE~ATIVE, |
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see, also, |
"Administrator"; ''Principal." |
of guarantor, liable If they have been bound, 208.
or surety, can give st~Jtutory notice to· sue principal, 197. of co-surety, ill proper party to suit for contribution, 338. liablllty of sureties for, 376, 377.
sureties tor, not entitled to notice of settlement of accounts of,
378.
suit on bond of, 378.
can enforce bond given to deceased, 237.
PERSONAL SURETYSHIP, see, also, "Suretyship."
definition, 14.
PLACE,
see, also, "Performance."
guarantor of note to be payable at a particular bank, not liable It not specified, 213 (note 411).
alteration as to, 161, 163, 164, 166 (note 176). See. also, "Alteration."
of business, change of principal's, ill not an alteration, 161 (note 137).
drawer and Indorser warrant that drawee is at designated, 358.
PLEADING,
guaranty must be pleaded speclall,-, 9.
plalntltr need not allege written contract, 112. statute of frauds, 112, 113.
breach of contract, 273, 274.
assumpsit, for Indemnity by surety from principal, ~ In action for contribution, 336, 338.
In suit for subrogation, 288.
PLEDGE,
see, also, "Security." pledgor, a snrety, 3, 18. when co-surety, 322.
can recover from creditor, If fraud on principal, 255. discharged by extension of time to principal, 172 (note 204). entitled to subrogation, 281.
relinquishment of, discharges surety, 226 (note 488).
POSTMASTER,
see, also, "O:fftclal Bond"; "Principal."
surety for, Hable for act of clerk or, 212 (note 405).
PRACTICE,
see "Action"; "Pleading''; "Evidence."
PREFERENCE,
see "Bankruptcy"; "Priority"; "Payment."
INDEX.
[The IIIUree refer to pagee.]
PRESENTMENT,
see "Indorsement'' ; "Indorser'' : "Demand."
PRESUMPTION,
see, also, "Burden or Proof" : "Evidence."
none, that one of two or more signers Is a surety, 150.
that payee or a note knows that one maker Is a surety, 151. that contract is written, 112.
·that joint signers with principal are co-sureties, 321.
that those liable In different relations are not co-sureties, 324. u to time or making contract, M. 108, 362.
that surety knows the law, 123, 308, 342.
that surety contracted wltb reference to statutes and by-laws, 189, 190.
that surety signed at the request of the principal, 45 (note 89). that principal will sign, 89 (note 67).
that o:fftclal bond was approved, 81.
as to consideration, 48, 49 (note 108), 54. as to condition, 39, 41.
that contract Is not retroactive, 220. or extension or time, 178, 180.
that surety performed contract, 211.
when, that demand was made of o:fftcer, 240. that default occurred during last term, 192, 200. as to security, 31 (note 34), 294, 344.
when, that sum named as liquidated damages Is a penalty, 271. that sureties pay debt Individually, 304 (note 76).
as to Indorsement, 356, 358, 359, 363. that drawee owes drawer, 358.
that surrender of principal Is the act of all the ball, 893.
PREVENTION,
see, also, "Act or Creditor or ObUgee."
ot performance by creditor or obllgee, discharges surety, 217.
PRINCIPAL,
see, also, "O:fftcer." definition, 2.
11'none, no surety, 233.
creditor may become, 81 (note 264), 297 (note 86).
grantor under warranty deed Is, 16. See, also, "Grantor and Grantee."
grantee assuming debt, becomes, 82. See, also, "Assumption." accommodated party Is, 365. See, also, "Accommodation Parties." surety as, 123, 251, 261, 264.
when drawer Is, 354, 358.
agent signing without authority Is, 44 (note 83). can become surety, 81.
as agent of surety, 35, 38, 41, 78, 154. See, also, "Agent."
548 INDEX.
(The ligures refer to pages.]
PRINCIPAL-Cont'd.
presumption as to signature by, 89 (note 67).
unauthorized signature by, surety bound, 44 (note 83), ii. no defense that name In ball bond Is Incorrect, 390. guaranty addressed to, Is general, 259.
promise to, not within statute of frauds, 98.
Incapacity of, does not take surety's contract out of statute of frauds, 95.
known default of, 168, 192, 202, 204.
express stipulation by surety for notice of Irregularities by, 120. defaults of, which could ha,·e been discovered by examination.
69 (note 203), 203, 204.
death of, 205, 206, 380 (note 23). See, also, "Death."
removal or resignation of, terminates surety's llabll!ty, 188. bad habits of, will not release surety, 193.
change In number, terminates guaranty, 168 (note 185), 205. duties, change In, 166, 167.
consent to changes In contract of employment of, 154.
change of business by, guaranty not terminated, 194 (note 318). change of place of employment, discharges suretY, 166 (note 176). change of place of business, not an alteration, 161 (note 137). change of compensation of, 166, 167.
marriage of, to creditor, discharges surety, 233. judgment In favor of, may be set up by surety, 233.
must perform agreement with creditor to discharge surety, 233 (note 530).
capacity of, Imported In contract of suretyship, 235. a de facto otlicer, sureties liable, 263.
surety estopped to deny election or appointment of, 261, 262. failure of, to take oath, surety liable, 263.
fraud on, by creditor, as a defense to surety, 254, 200. fraud by, on surety, 70.
duress of, 74 (note 231), 254. See, also, "Duress." duress of surety by, 72.
personal defenses of, not available to surety, 238. an allen enemy, no defense to surety, 235.
statute of limitations In favor ot, no defense to surety, 235. property of, coming Into creditor's hands, discharges surety, 234. security given by, see "Security."
discharge of, will discharge surety, 232. performance by, see "Performance." default by, see "Default."
good faith of, 370, 3~2. See, also, "Intention." payment by, see "Payment."
llll[lrisoumcnt of, surety eannot be held while continuing, 244. tenuer by, discharges surety, 242, 247. See, also, "Tender."
INDEX. |
549 |
[The ligures refer to pages.]
PRINCIPAL-Cont'd.
release of, effect on llablllty of surety, 148 (note 71), 155, 227 (note 492), 242, 248, 249 (note G27), 251. See, also, "Release."
takes away right of contribution, 345. consent to, 153 (note 00).
part payment not a consideration for, 248 (note 626). remains liable after release of surety, 252.
suit against, 194-HlS.
dlllgence against, what excuses, 223. Insolvency of, what Is, 223 (note 477).
when corporation is, In guaranty of collection, creditor need not exhaust stocklwlders, 222 (note 471).
making surety believe note paid, elfect, 218.
promise of cretlitor to look to, discharges surety, 21hl. bankruptcy or Insolvency o!, no defense to surety, 235, 237. extension of time to, effect, 148 (note 71), 345. See, also, "Ex·
tension or Time."
creditor not obliged to obtain judgment against nor levy upon,
229.
creditor not obliged to file claim against estate or deceased, 239. admissions of, and entries by, are e\·idence against surety, 274. counterclaim of, against creditor, when surety can set oft', 272. judgment against, by creditor, for less than amount due, surety
not liable for balance, 244.
reversal or, surety cannot recover money paid creditor, 234 (note 535), 243 (note 589), 256 (note 664).
cannot recover from surety, 296, 297, 365, 366.
rights of surety against, see "Indemnity"; "Surety."
buying surety's property at execution sale, cannot bold same, 294. homestead right of, determined by law In force at time of mak-
Ing contract, 206.
request by, to surety, to sign, when presumed, 45 (note 89). estoppel of, to question validity or surety's obligation, 311. not entitled to notice or suit against surety, 298.
permission to surety to pay creditor, unnecessary, 292, 297. liable to surety, though surety's contract oral, 88.
amount of liability or, to surety, 204, 305.
judgment against, whether evidence against surety, 275. agreement by, that paym{'nt by surety shall be conclusive ot 11·
ablllty of, against public policy, 315. surety cannot speculate on, 278, 314, 315.
liable to surety for claim set oft' by surety against creditor, 315. can recover from surety excess of payments made by, 314. defenses of, cannot be waived by surety, 309.
must notity surety or defenses against creditor, 308, 311.
Infancy of, no defense against guarantor of necessaries for, 807. when judgment against surety Is evidence against, 315.
550 INDEX.
(The ligures refer to page-.]
PRINCIPAL-Cont'd.
payment In funds of, a defense to contribution, 340, 841. Indebtedness of to co-surety, no defense to contribution, 341. purchue of property of, at a nominal price, a defense to con-
tribution, 841 (note 114).
Is proper party to suit for contribution In equity, 338.
when necessary to allege Insolvency of, In suit for contribution.
338.
ball discharged by refusal of state to arrest. 218. cannot recover money deposited with ball, 312.
PRIORITY,
see, also, "Bankruptcy."
by surety secured by suing principal on original Instrument, 305. subrogation to, 286, 287.
PRISONER,
see "Ball"; "Imprisonment."
PRIVILEGES,
see, also, "Liens." subroga tlon to, 286.
PROCEDURE,
see "Action" ; "Pleading" : "Evidence."
PROCEEDS,
see "Security."
PROMISSORY NOTE,
see. also, "Negotiable Instrument"; "Indorsement": ..In· dorser": "Note."
joint maker of, a surety, 4.
paayble to maker's order, and unindorsed, Jlablllty of guarantor of, 44 (note 84).
PROOF,
see "Burden of Proof''; "Evidence" ; "Presumptions"; "Bank· ruptcy"; "Estate."
PROPERTY,
surety can recover pledge or, from creditor, It fraud on prln· clpal, 255.
of principal, surrender of, by creditor, discharges surety, 226. surety may sell If debt due, 318.
Is common fund for protection of all co-sureties, 341 (note 114), 351.
payment In, 242, 300, 312, 330, 331, 341. tender of, not sumclent. 248 (note 623), 382.
destruction of, as a defense to surety for, 232, 234. damages recovered arising from attachment of, 383.
delivery of, under forthcoming bond, may be waived, 382 (note sureties on replevin bond liable tor failure to restort>~ 385.