учебный год 2023 / Child, Handbook of the law of suretyship and guaranty
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(THE FIGURES REFER TO PAGES.)
A
ABANDONMENT,
see "Relinquishment."
ABBREVIATIONS,
meaning or may be shown, 107.
ABOLISHMENT,
ot court discharges ball, 898.
ABSENCE,
ot principal wlll not excuse Dall, 891, 393.
ABSOLUTE GUARANTY, see "Guaranty."
ACCEPTANCE,
see, also, "Acceptor."
necessary to create contract of suretyship, 24. necessity of formal notice of, 25.
of otrer to become surety or guarantor, 25, 31-33. ot ofHclal bond, Indicates approval, 31.
by obligee presumes assent to known conditions, 4L ot guaranty, makes It etrective, 131.
notice to one joint guarantor sufHclent, 33.
oral, of negotiable Instrument, statute of frauds, 97. ot bill or exchange, 354, 358.
ACCEPTOR,
see, also, "Acceptance." Is liable on oral promise, 97.
may be shown to be a co-surety, 324 (note 24).
ACCO:\DIODATI ON PARTIES, definition, 364.
may occupy any position on Instrument, 364. are liable In capacity assumed, 365.
are sureties, 3, 364.
are not co-sureties, 323 (note 10). may be shown to be co-sureties, 324.
are not liable to accommodated party, 365.
CHILDS' SUBETYSBIP |
(485) |
486 INDEX.
[The l!guree refer to page-.]
ACOOMMODATION PARTIE8-Cont'd.
entitled to Indemnity from principal, 802 (note 66). entitled to subrogation, 280.
ACCOUNTS, .
of principal, failure of .obligee to examine, 203. falsification of, Is a default, 221.
ACKNOWLEDGMENT,
ot bond, omission of, no defense to surety, 75. ot llablllty by surety, Is waiver of defense, 256.
ACTION,
see, also, "Pleading"; "Evidence" ; "Damages" ; "'Indemnity"; "Contribution"; "Guarantor"; "Guaranty": Sure- ty"; "Subrogation"; "Notice"; "Creditor"; "Judgment"; "Judicial Bonds" ; "Jurisdiction"; "Principal."
Institution of, consideration for guaranty of costs, 58.
not to proceed with, Is consideration tor contract, 56 (note 140). withdrawal of, Is consideration tor contract, 56.
change as to form or, Is an alteration, 169. being subject to, when breach of contract, 217.
ACT 0~' CREDITOR OR OBLIGEE,
as defense |
to surety, 210, 217, 397, 898. |
not It Iawful, 210. |
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ACT OF GOD, |
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discharges |
ball, 397. |
ACT OF LAW,
discharges surety, 233 (note 530), 397, 398. alteration or extension of time by, 160.
ACTS,
see, "Act of Creditor or Obligee"; "Oftlclal Bond"; "Surety:•
ADDITION,
see "Alteration": "Signature."
ADDHESSEE,
see "Guaranty."
ADEQUACY,
ot consideration, 48, 55.
ADJOURNMENT, see "Delay."
ADMINISTRATOR,
see, also. "Personal Representative."
surety not liable if secret agreement between principal and ob- l!gee, 218.
surety not liable to creditor If principal Is creditor's agent, 297 (note 30).
INDEX,
[The ligures reter to papa.)
ADMISSIONS,
ot principal, when evidence against surety, 274.
ADVANCEMENTS,
by creditor to principal, consideration tor, M.
more or less than limit named by guarantor, whether an altera· tlon, 162.
AFFIRMANCE,
see "Appeal Bond."
AGENT,
see, also, "Principal"; "Offtclal Bond." husband and wife are not for each other, 198. partner Is, of firm, 77.
one person may be, for creditor and surety, 110. authority ot, need not be in writing, 78.
authority to execute sealed Instrument must be under seal,
111.
sufftclency of notice to, 40. ratification of acts of, 77. ot surety can bind him, 77.
creditor or principal cannot be, 78, 110.
to sign mtlmorandum required by statute ot frauds, 106, 110, 111.
to fllJ blanks, principal can be, 41, 78. to make delivery, 85, 38, 78.
to renew, principal Is not, 154.
to give statutory notice to sue, 197. to make payment, 299.
oL ball, authority of, 392.
signing name of principal without authority, 44 (note 83), 77. of creditor, wife Is not, 195, note 821.
surety cannot be, 110. to receive, 35.
when concealment by, is fraud on surety, Q7.
when knowledge ot defaults by, terminate contract, 204. notice to sue can be given to, 195 (note 321), 198.
del credere, contract of, not within statute ot frauds, 91. bond of, Is an offtclal bond, 367.
llnblllty ot surety on, 119 (note 24).
surety tor offtcer not liable for his acts as, 211, 372.
ot creditor becoming principal of bond, makes creditor the prln· clpal, 297 (note 36).
commissions ot, consideration for suretyship, 57. bond given to, who can enforce, 257 (note 667).
special guaranty addressed to, when enforceable by bls principal,
258.
488 |
INDJIIX, |
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[The llgurea refer tA pq&J |
AGREE~IENT, |
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see "Essentials"; |
"GuaraDq''; "Suretyship"; "Negotiable ID- |
strument." |
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ALIEN ENEMY,
no defense to surety that prlnelpal Is, 235, 242.
ALLEGATIONS, see "Pleading."
ALTERATION,
see, also, "Change."
discharges surety, 157-160, 880, 890.
defense of, not waived by reeelpt or consideration. 157. will not afreet lnnoeent parties, Ui7, 159.
addition Is, 46, 162, 163. erasure Is, 163, 1~ filling blanks, 41.
as to plaee, 161, 164.
ehange or prlnelpal's territory Is, 166 (note 176).
as to time, 160, 172, 213. See. also, "Extension of Time." as to names, 43, 163.
forged, 170 (note 202). as to amount, 162, 380. as to Interest, 162.
as to medium or payment, 164.
of negotiable Instruments, 160, 163, 170 (note 202). by making Instrument negotiable, 164.
by making joint and several contract joint, 164.
by adding provision for attorney fees, 165 (note 166). as to eapaclty of promisor, 164.
as to seal, 164.
by making eondltlonal guaranty absolute, 164. of bonds, 169.
of lease, 168.
of contract of sale, 168. of contruet seeured, 164.
or one contract will not aft'eetaDother secured by same lnstru· ment, 165.
of building eontract, 165.
as to duties or principal, 166, 167.
as to remuneration ot principal, 166, 167.
as to length ot term of principal, 124 (note 48). In judicial proceedings, 169, 380 (note 26) Immaterial wlll not discharge, 157, 158, 170. spoliation Is not, 158. ·
will not dlscbarge If Inadvertent, 15iS, 157, 158, 160, 163.
of date, not authorized by consent to aD extension of time, 155 (note 108).
Digitized
INDEX.
[The llcuree refor to papa,]
ALTERATION-Cont'd.
waiver of provisions for sole benefit of obligee Is not. 1615. change as to collateral matters Is not, 165, 166.
change of principal's place of business Is not, 161 (note 137). assignment of lease Is not, 168.
advances Jess than or In excess of Umlt named, 162. court will not_ make, .120, 125.
ALTERNATIVE, performance In, 216.
AMBIGUITIES, |
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In memorandum required by statute of frauds, |
108, 109. |
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In gunrnnty, how cleared, 12'l |
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can be explained by oral evidence, 116. |
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taken against party using, 120. |
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AMENDMENT, |
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See "Statute": "Alteration." |
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AMOUNT, |
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see "Alteration"; |
"Contribution"; ..Damages"; |
"Guaranty"; |
"Surety." |
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ANNUAL OFFICE, |
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mennlng of term, |
18S. |
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how created, 191. |
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Jla'blllty of surety |
for, 119, 186, 187, 188, 100. |
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ANOMALOUS INDORSEMENT, |
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see "Indorsement." |
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ANXIETY, |
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damages not aJJowed for, 384.
APPEAL,
see, also, "Appeal Bond."
from decision ot court regarding remission of forfeiture of ball bond, 400 (note 88).
APPEAL BOND,
see, also, "Bond." what Is, 379.
corporation Is not liable as surety on, 63. recital and condition of, 380.
defects In, 381.
must recite court, 120.
estoppel of surety to attnd< judgment appealed from, 262. when no conslderutlon fot•, iJS.
request to becorne sur·ety on Implied from tuklng advantage of,
307.
liability of sureties on, 6, 218 (note 441), 2G7, 270 (note 743), 379, 380, 381.
INDEX. |
491 |
[The 11cur1111 rerer to pq-1111.] |
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ATTACH.MEXT, |
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see, also, "Forthcoming Bond"; |
"Bond." |
origin of, 381.
may be wrongful though claim valid, 883.
release of, by creditor, wlll discharge surety for debt, 225. surety for debt can have assignment of, to him, 286.
bond, 381-383.
to discharge, condition of, 382.
ATTENDANCE, see "Ball."
ATTORNEY,
Is a public omcer, 367 {note 1). may be a surety, 63, b7
consideration for guaranty of claim by, 58. tees, 266. See, also, "Expenses."
adding provision for, is alteration, 1G5 (note 166). when surety can re<.'Over from principal, 317. guaranty of collection liable for, 270. contribution for, 332.'
In resisting appeal not recoverable on bond, 260 (note 743). sureties on attachment bond liable for, 383.
sureties on Injunction bond, when Hable for, 385. subrogation to, 286.
A VAL, 3 (note 2).
AVERMENTS,
see "Pleading."
AWARD,
see "Arbitrators."
B
BAIL,
see, also, "Surety." meaning of, 389.
distinguished from recognizance, 388. criminal and civil, object of, 339 rights and liabilities of, 390.
arrest and surrender of principal,· etrect, 391-393. how discharged, 218, 219, 249 (note 527), 394-400. performance by, 394.
bond, see "Bond." definition, 388. object of, 388. provisions in, 395.
not taken after flnnl process, 389. requisites, 390.
naming two penalties, surety liable for lesser only, 125.
492 lNDBX.
[The ligures refer to papa.)
BAIL-Cont'd.
what Is breach of, 895. forfeiture of, 400.
setting aside, 400, 401.
elrect of payment by sureties, 389.
cannot recover money paid, because principal afterwards dies, 898 (note 68).
deposit In lieu of, 391.
Indemnity from principal, 293 (note 4), 811. can recover costa from principal, 312.
cannot recover from principal If he did not sign bond, 43 (note 79). entitled to contribution, 325 (note 28).
promise of Indemnity to, not within statute of frauds, 90. not subrogated to rights of state, 287.
sickness of, will not discharge, 401 (note 90).
BAILMENT,
destruction of property may discharge surety for, bane.!, 234.
BANK,
see, also, "Corporation"; "Ultra VIres." as surety, 62.
no subrogation by creditor to principal's deposit In, 283.. published statements by, when constructive fraud, 68. appllcatlon of principal's deposit on Indebtedness, 227, 228. enforcement of special guaranty addressed to ome& of, 258
(note 677).
elrect of change In name on special guaranty addressed to, 258
(note 676). |
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payment with notes of, 830 (note 61). |
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liability of sureties for |
loss of fUnds by failure of, 875. |
BANKRUPTCY,
see, also, "Insolyency."
of principal, no defense to surety, 285, 237.
creditor cannot apply dividends to unsecured portion of debt, 238.
as defense against surety, 306, 312.
surety can prove claim against estate, 237, 298 (note 4). excepted debts, 287 (note 837), 313.
of surety, 235. 238.
as defeuse to contribution, 340, 347.
ro-surety can prove whole claim, 347 (note 156).
payment by principal which Is a preference, will not dlschllrge surety, 244.
waiver of defense of, 238.
Is consideration for extension of time, 182.
BARRED DEBT,
see "Statute of Llmltntlons."
INDEX. |
493 |
[The llgurea refer to pagea.J.
BEARER,
see "Negotiable lns:rument."
BEGINNING,
see, also, "Retroactive."
of liability of surety, 210, 219.
BENEFIT,
see "Alteration" ; "Extension of Time"; "Relinquishment"; "Statute ot Frauds."
BET,
see "Illegality."
BILATERAL CONTRACT,
formal acceptance of, unnecessary, 80.
BILL,
of exchange, see "Negotiable Instrument"; "Drawer"; "Indorser"; "Acceptance"; "Accommodation Parties."
In chancery, see "Pleading."
BLANKS,
fllllng, 41, 78 (note 2415). |
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BOND, |
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see, also, "Alteration"; |
"Ball"; |
"Appeal Bond"; |
"Attach- |
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ment"; "Administrator"; "Guardian"; "Injunction Bond"; |
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"Replevin Bond"; "Official |
Bond"; "Statutory |
Bonds"; |
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"Voluntary |
Bond"; |
''Peraonal |
Representative"; "Judi- |
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cial |
Bonds." |
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parts of, |
119, 413. |
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essentials or, 45, 46, 120. |
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sureties not liable If void, 390. |
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extorted from principal, 74 (note 231). |
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express limitation |
or liability by |
surety, 269. |
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signed by surety In blank, 42 (note 75).
surety not liable for anything Inadvertently omitted from, 212. containing more than statutory requirements, 74.
valid, though executed to wrong municipality, 715. no consideration tor, It Improperly given, 58. failure to acknowledge Is not a defense, 75. taken by de facto officer Is valid, 76.
takes effect from delivery, 45.
delivery by part of obligors sufficient, 39 (note 66).
names In body of give const111ctlve notice of conditions as to additional signatures, 38, 39.
estoppel of surety to contradict, 262.
to corporation or partnership, surety estopped to deny legal exIstence of, 261, 264..
to appear at certain time, what Is performance of, 213. construction of, 119.
494 INDEX.
lThe ftaurea refer to pacea.l
BOND-Cont'd.
does not cover acts of principal's subordinates, 212 (note 405). for special duties, 192.
to hold harmless, whP.n broken, 217, 276.
joint, Is not made several by subsequent statute, 124 (note 48). may take eft.'ect from date, 220.
successive, when cumulative, 192, 199.
In legal proceedings, liability of sureties as to each other,
200, 2i:il, 328.
with forged signatures does not constitute an extension, liS (note 240).
It defective, surety on former bond not discharged, 199 (note
347).
whether can be extended by oral agreement, 177 (note 231).
of tobacco manufacturer, sureties remain liable though license expires, 187.
when cancellation of, releases sureties, 250. loss of, does not prevent recovery on, 274. who may enforce, 256. 2;:;1.
when ~;:trlct compliance with conditions of, Is Impossible, 120.
obllg('(', by his own act, may prc,·ent breach of, 211, 343. |
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for dlft.'ereut terms, llliblllty of sureties, 201. |
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successh·e, default presumed to have occurred during period cov- |
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ered by |
last, 192. |
summary |
remedy on, 276. |
judgment given for full amount of penalty of, 267.
subrogation to; 283 (note 820). |
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gl'l"en |
by |
one partner for firm, surety cannot recover from firm |
300 |
(note 54). |
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Improperly given, Is no defense to principal against surety, 311. |
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guaranty |
of, 62. |
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BONDING CO.:Itl'ANY. |
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see "Corporate SurPty." |
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BREACH, |
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see "Bond"; "Default'' |
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BUILDING CO~""l'RACT, |
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boutl |
for, |
by prior agreement, valid though work begun, 52 |
(note 116). |
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oral promise to pay for Jabor and material, 105. alteration of, 154, 159, 165. 166. See, also, "Alteration." discharge of sureties, 166, 221 (note 464).
o!Jligee cannot recover It joint tort-feasor with principal, 217 (note 441).
when surety liable for liquidated damages, 271. surety may 'lle liable for claims beyond penalty, 200.
materialmen. lienholder!'!, and subcontraetors cnnnot cnforN• bond for, 256 (note GliO).
INDEX.
[The llsurea refer to paces.]
BURDEN OF PROOF,
breach of contract, 273, 274.
on creditor, to show that relinquished security was unavailable, 231.
to show diligence against principal, 222.
on surety, to show his discharge, 233 (note 530).
to show creditor's knowledge of relation, 149 (notes 174, 151). to prove principal's default occurred In prior term, 200.
to allow that extension Is binding, 176 (note 224).
to show that his defense against creditor's claim was merl torlous, 316.
to show that his note was taken by creditor as payment, 300 (note 59).
on co-surety, to show that security was given him for another claim, 345 (note
to show that his disposition of security was proper, 84:1.
BURGLARY,
liability of sureties for loss of funds by, 875.
BURNED PROPERTY,
BPe '"Fire"; "Destruction"; "Ballment"
BUYER,
see, also, "Assumption"; "Grantor and Grantee": "Mortgage" ; "Partners."
oral promise to pay Indebtedness of seller not within statute of frauds, 101.
assuming Indebtedness of seller, becomes principal, 172 (note
204).
BY-LAWS,
see, also, "Statute."
requiring three sureties, two would be bound, 64 (note 188). contract construed with reference thereto, 114, 122, 189. surety not liable longer than term of office fixed by, 188. requiring e_xnmlnatlon of officer's accounts, not for benefit of
sureties, 203.
c
CANCELLATION,
of bond, when sureties released by, 250.
CAI•ACITY,
see, also, "Incnpaclty." of surety, 50, 123.
of principal, 235.
of drawee, drawer and Indorser warrant, 358.
CASHIER,
see "Bank"; "Principal."