учебный год 2023 / Child, Handbook of the law of suretyship and guaranty

of the law precisely as he would had the bail surrendered him.'~'~ So where, during the Civil War, a certain region having been placed under martial law, a federal military officer, after the accused had been released on a recognizance entered into a state court, arrested, removed, and imprisoned the principal, his sureties were e:;;cused from producing him at the state court.74

In order, however, that another arrest of the principal shall operate as a discharge of his sureties by being the act of law or of the obligee, it is requisite that such new arrest shall be within the same jurisdiction where the obligation was assumed.u If the principal be arrested and imprisoned in another state, his sureties remain liable; 18 for, in the eyes of the law, he was in the custody of the sureties, and it was through their negligence that he was allowed to depart.17 If, however, the state in which the bond was entered into has permitted the· accuse,d to be extradited, his sureties are discharged.11

Enlistment.

The voluntary enlistment of the principal in the military service will not release his bail/' although it is otherwise if the enlistment be involuntary.80

72 Ga. 351; Brown v. People, 26 Ill. 28; State v. Merrihew, 47 Iowa, 112, 29 Am. Rep. 464; People v. Robb, 98 Mich. 397, 57 N. W. 257; Bishop v. State, 10 Ohio St. 419; Wheeler v. State, 88 Tex. 173.

18 State v. Holmes, 23 Iowa, 458; Commonwealth v. Coleman, 2

.Mete. (Ky.) 382.

H Commonwealth v. Webster, 1 Bush (Ky.) 616. u See note 66, supra.

u Ingram v. State, 27 Ala. 17; State v. Scott, 20 Iowa, 63: With- row v. Commonwealth, 1 Bush (Ky.) 17: Barrington v. Dennie, 13

.Mal!8. 93; King v. State, 18 Neb. 375, 25 N. W. 519; Devllle v. State, 5 Sneed (Tenn.) 623; Taylor v. Talntor, 16 Wall. (U. B.) 366, 21 L. Ed. 287.

11 Talntor v. Taylor, SO Conn. 242, 4 Am. Rep. 58; Yarbrough v. Commonwealth, 89 Ky. lri1, 12 S. W. 148, 25 Am. St. Rep. 524; State

ton v. Dennie, 13 1\Ia.ss. 93. See, also, Huggins v. People, 39 Ill. 241. ao Belding v. State. 25 Ark. 315, 99 Am. Dec. 214, 4 Am. Rep. 26;

Alford v. Irwin, 34 Ga. 25.

previous to the delivery of this bond, was known by the hank, or by its officers, to be a defaulter,• or to have been guilty of any acts which would indicate that he was not of good character.

The sureties shaU not be liable for any acts of the principal which do not amount to larceny, embezzlement, or fraud as an employe as to property or funds in his personal possession or control; nor for any fund reported as being in possession of the principal unless such sum shall be actually in his possession; nor for any defaults occasioned by making good prior defaults of the principal.'

The liability of the sureties shall terminate at once, if the duties of the principal are changed,8 or if additional duties7 are imposed upon him other than those which may arise naturally from a growth of the business of the bank ; or if the capital stock of the bank be increased ; or if its charter expire by limitation or otherwise ; or if any reduction be made in the salary of the principal, or in the method of ascertaining the same ; 1 or if his compensation be paid to him in advance,• or unreasonably withheld ; or if the services of the principal are discontinued for any cause,10 except for such reasonable time as may

• This condition would be Implied by law. See ante, I 54. But, as the parties are not lawyers, It Is better to Insert many of the lm· plied conditions, so that there may be no misunderstanding on these points.

1 In the absence of this express provision, the sureties would be liable for a default arising from the application by the prlnc·lpnl of funds In his possession to pay a previous shortage. See ante, c. V,

T In tht absence of an express provision, the sureties would be discharged, In any event. If the ndded duties of the principal were !<uf· ftclent to Interfere with the pt·oper performance of the duties cov· ered by the bond. See ante, c. V, note 179.

a See ante, e. V, note 181, as to changes affecting the principal's compensa tlon.

• See ante, c. V, note 173.

10 In the absence of any stipulation on this point, the liability of the sureties for any subsequent acts of the principal would cease the Instant the services of the principal were discontinued for any cause. See ante, c. V, note 298.

control or charge as such officer, and shall pay and deliver over to his successor in office, or to any other person duly authorized to receive the same, all such balances or sums of money, property, or other things which shall appear to be in his hands or chargeable to him, and due or deliverable by him to the obligees, then this obligation to be void; otherwise, to remain in full force and virtue.

This bond is executed, delivered, and accepted with the understanding that the liability of the sureties is not affected by reason of any failure of the obligees to disclose any information they or either of them may possess in regard to the reputation, habits, or past acts of the principal,28 and is subject to the following additional stipulations:

The sureties shall be liable for all prior defaults of the principal existing at the time this bond is given, whether known to the obligees or not,24 as well as for all defaults occurring at any time hereafter, and for all defaults which may be made to cover prior defaults.211

The sureties are to be liable for any loss resulting to the obligees through the principal, whether such loss results from the dishonesty of the principal, from his negligence, or from his errors in judgment; 28 and the liability of the sureties shall extend to any losses of funds or property of the obligees in the possession or control of the principal, although such loss may arise from fire, theft, robbery, or burglary, without any fault or neg- · ligence on the part of the principal,11 and to all losses sustained by the obligees which arise through the default of the principal

u See ante, I 54.

u Tbe general rule Is that sureties are not liable tor any default occurring prior to the delivery of the Instrument, unless an Intention to become so liable Is shown clearly. See ante, I 124.

u The sureties would be liable In this ease without an express provision. See ante, c. V, note 354.

u It sureties are to be held liable for losses arising through errors In judgment by the prlnclpnl, It Is much better to have this clearly appear; otherwise, there may be some question nhout lt. See ante, c. Y, note 436.

n The sureties for a private officer are not liable, Impliedly, for any losses resulting rrom fire, larceny, robbery, burglary, or n banlt failure, If the principal has been tree from negligence, though It Is otherwise as to the sureties ot a public officer. See ante, I 188.

change in the compensation of the principal, or in the manner of ascertaining the same,82 or in the time of paying same,aa or by a discontinuance of the services of the principal for any time less than one year; but if the principal, for any cause, shall cease at any time to be employed by the obligees, but shall be re-employed by them within one year from the time any such employment ceased, the liability of the sureties on this bond shall be the same as if the employment of the principal had been continuous and without interruption."

The liability of the sureties shall not be affected if the obligees take a new bond from the principal, unless the obligees expressly agree to terminate the liability of the sureties upon this bond ; 11 nor shall the liability of the sureties be affected by any release, surrender, relinquishment, or loss of any property or security, of any kind, of the principal or of others, or of rights or remedies against them or any of them, which the obligees may have at any time; 18 nor shall the liability of any of the sureties be affected by a release, directly or indirectly, of either or of both the other sureties."

The sureties waive notice of all defimlts of the principal, and consent to remain liable for all future defaults of the principal as long as he may be continued in the employment of the obligees, whether his defaults may be known to the obligees or not, and whether notice of defaults are given to the surt:ties or not.••

uSee ante, e. V, note 182. aa See ante, c. V, note 173.

u Generally, the liability of sureties terminates the Instant the principal's employment ceases for any cause, although he Is re-em· ployed subsequently. See ante, c. V, notes 298 and S04.

11 As to the etreet, upon the liability of sureties, of the obligee takIng a new bond. see ante, c. V, note 348. The new bond Is supposed to be cumulative, but 8 doubt might arise.

ae The general rule Is that sureties are released, If the obligee re· llnquishes or loses securities, to the extent of the value of the securities so relinquished or lost. See ante, I 127.

11 Generally 8 release of one co-surety releases the others proportionately. See ante, c. V, note 644.

aa After 8 default by the principal, known to his employer, the liability of the sureties Is terminated at once ns to nil future defaults, unless they consent to remain bound; but as to the default already

After the obligees shall have recovered a judgment against the principal and sureties, either jointly, or against any one or more fewer than all, the sureties shall not be obliged to satisfy such judgment out of the property of the principal before resorting to the property of the sureties, but may satisfy such judgment out of the property ·of any one or more of the defendants as the obligees may elect.

Lewis F. Fell. Charles A. Thatcher. Daniel E. Brong. Edward F. Raymond.

State of New York, }

County of New Yrok. ss.

I, Robert L. Lane, a notary public in and for the county and state aforesaid, do hereby certify that Lewis F. Fell, Charles A. Thatcher, Daniel E. Brong, and Edward F. Raymond, personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth.

Given under my hand and official notarial seal this first day of July, 1907.

Robert L. Lane, Notary Public.

Here note the addresses of the sureties and make a schedule of their assets.

The three parts of a bond can be observed in the above forms: First, the penal or obligatory part, which provides for the payment of money. Should the bond end here, it would be an ordinary obligation for the payment of money. Next comes the recital, setting forth the circumstances under which the bond is given, and the reason therefor; and, lastly, the conditional part, or defeasance, providing that, upon the performance of certain acts named, the bond shall be void. The bond is broken by a failure to comply with the conditions named; and, upon showing that fact, the liability of the sureties is estalr fished.

bind our heirs, executors, and administrators, until knowledge of such death shall reach the said Puritan Banking Company. 52 In witness whereof, we have hereunto set our hands and seals at the city of Boston, in the state of Massachusetts, on the first

day of July, 1907.

Arthur S. Peebles. (Seal.)

Rawson Redman. (Seal.)

The following form is for a limited guaranty of collection to protect the guarantor against greater liability than he a.ctually intended to assume :

Form for Gt~aranty of Collection to Protect Guarantor.

Ann Arbor, Mich., July 1, 1907. Mr. George W. Underwood, Detroit, Mich.:

Mr. Hamilton Hunt, of this place, goes to your city this week to buy goods. We guaranty the collection 18 of the price of any goods which you may sell to him on this trip,u on sixty days' time,111 not exceeding five hundred dollars in amount.

Alling & Hammill, by Charles Alling.

u See ante, the guarantor.

, aa A guarantor of collection Is not liable unless tbe principal IS shown to be financially Irresponsible. See ante, t 126.

u The guarantor will not be liable If there be any deviation from the exact terms prescribed by him. See ante, c. V, note 19L

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