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

496 INDlllX.

[The ll.gurea refer to paces.]

CAUTIONARY, 1fi (note 52).

CAUTIONER, 4 (note 11).

CAUTIONRY, 3 (note 2).

CHANCERY,

see "Equity."

CHANGE,

see, also, "Alteration"; "Partners." ot relation, 81.

of amount of judgment In appellate court, llablllty of sureties on appeal bond, 380. .

In bonds, discharges sureties, 169. In contracts of employment, 154.

In length of term ot principal, 124 (note 48). In building contracts, consent to, 154.

In cause or action or procedure, 169. In application of payments, 246.

In number of guarantors, 2015, 208.

In number of principals terminates guaranty, 168 (note 185), 205. ot principal's business does not terminate guaranty, 194 (note 318). or parties, liability or surety on appeal bond, 380 (note 26).

In number of creditors or obligees, 2015.

In firm, elfect on special guaranty addressed to, 259.

In name or bank, elfect on special guaranty addressed to, 258 (note 670).

ln form of security by creditor, surety not released, 230. In statutes, llablllty of surety, 123.

In law discharges ball, 398.

of venue, liability of ball, 300.

grant of order for, ball not discharged, 396 (note 63).

CHAHTER,

expiration ot, llablllty ot surety thereafter, 186 (note 288).

CHECK,

see "Negotiable Instrument."

CIVIL BAIL, 389.

CLERK,

see "Officer," "Deputy," "Principal," "Bond."

COGNIZORS, 389.

sec :'Recognizance."

CO-GUARANTORS,

see, also, "Guarantors"; "Co-Sureties." dellnltlon, 5.

contribution, 325 (note 28). subrogation, 282 (note 817).

INDEX.

[The ftcurea refer to paa...l

CONSENT-cont'd

to release of co-surety, 347.

to change application of payment, 246.

of principal, Implied by reservation of rights by creditor against surety, 251.

of beneficiaries under bond, necessary to cancellation atter default of principal, 250.

of creditor or obligee, to subrogation by surety before payment,

279.

by one co-surety, wlll not atrect others, 151!. of co-surety to contribution, 253.

CONSEQUENTIAL DAMAGES, see "Damages."

CONSIDERATION, definition, 49. necessity for, 24, 48.

not waived by writing, M.

when presumed, 48, 49 (note 108), 54. sutllclency, 58.

commissions, 57.

disadvantage to promisee, 00, 51. release, 57.

from oral contract of suretyship, 88. surrender of note, 57.

rellnqulshment of lien, 57.

of right to rescind sale. 57. withdrawal of suit, 56.

agreement not to Increase costs or expenses, 56 (note 140). extension of time, 57.

when forbearance Is, 53, 55, 56. past, 51, 53, 58 (note 150).

for contract after delivery, 52. moral obligation is not, 58.

none for bonds Improperly given, 58.

payment of overdue debt Is not, 180 (note 254), 182. for continuing guaranty, 194.

for advancements, 54, 55. for past and future acts, 5:>.

for extension of time, necessity of, 171, 179. sutllclency of, 179--182.

for release, necessity of, 252 (note 643). part payment Is not, 248 (note 626).

from contribution, payment, Is, 347 (note 155).

for principal's Implied promise of Indemnity to surety, 293. adequacy of, 48, 55.

value of, 55. Illegality, 48, 5!1.

500 INDJIIX.

(The ftgurea refer to PAPLl

OONSIDERATION-Cont'd.

whether memorandum required by statute of frauds, must show, 108.

does not take promise out of statute of frauds, 83, 86. as affecting construction of contract, 116.

receipt of by surety, does not waive defense, 157. want of, 49 (note 109), 55 (note 128), 857.

as to part of the contract, 52 (note 115), 58. failure of, 242, 254.

against purchaser for value of a negotiable Instrument. without notice, want or tallure of, cannot be shown, 48, 54. 254.

return of, by Infant principal, discharges surety, 236. adding exact, Is not a material alteration, 170 (note Implied promise of Indorser to refund, SlSS.

OONSTABLE,

see, also, "Officer" ; "Oftlclal Bonds" ; "PrincipaL,. llablllty of sureties, 218 (note 444).

CONSTITUTION,

see, also, "Statute."

contract of suretyship construed with reference thereto, 189.

CONSTRUCTION,

see, also, "Intention."

Is a question of law, 115, 126 (note 54). of contract, rules tor, 114. ·

to be reasonable, 114, 116.

against party using language, 114, 115, 121. ambiguities can be cleared by oral evidence, 116. express terms prevall over Implied ones, 114, 122. given by the parties, to be adopted, 114, 121. meaning to be given words, 114, 117.

surety favored In, 114, 124, 186.

to effectuate Intention of parties, 114, 117, 189, 190. valid rather than Invalid meaning to be given, 114, 120.

with reference to constitution, statutes, and by-laws, 114,

122, 189, 190. governed by usage, 117.

court will not alter, nor supply omitted terms, 120, 125. when conditions In, are Impossible of strict performance,

120.

as affected by receipt, by surety, of consideration, 116. ot corporate surety, 116.

as atrected by conflict of laws, 131. of guaranty, 125-129, 131.

meaning of "holden," "good," "safe," 126.

ot express agreement of surety to waive Indemnity from principal, 294.

[The ligures refer to pas...l

CONSTRUCTION-Qint'd. of statute of frauds, tn.

of statute allowing surety to compel suit by creditor, 196.

CONSTRUCTIVE NOTICE, see, also, "Notice."

of conditions, 3G, 37, 38, 40.

CONSTRUCYriVE SURRENDER, see "Surrender" ; "Ball."

CONTINGENCY,

see, also, "Condition."

when subrogation subject to, 290.

CONTINUANCE,

see, also, "Delay."

of suit against principal will not discharge surety, 142. when ball remain liable after, 394.

CONTINUING GUARANTY, see, "Guaranty."

CONTRACT,

see "Suretyship"; "Guaranty"; "Bond''; "Negotiable Instru• ment"; "Building Contract"; "Essentials"; "Construction"_; "Alteration."

CONTRACTOR,

see "Building Contract"; "Bond"; "Principal."

claim for, can be set off against claim of plaintiff, 849. when judgment against co-surety is evidence, 342.

502 INDEX.

[The llguree refer to pagu.]

CONTRIBUTION-Cont'd.

amount recoverable In, 331, 335, 336, 339. apportionment of llablllty, 833, 834.

liability of co-surety for, not Increased by holding security, 328 (note 40), 833 (note 75).

after part payment by principal, 335. for Interest, 331, 332.

for expenses, costs, and attorney's fees, 331-333. for satisfaction of judgment, 832.

towards payment of mortgage, 834.

after making, surety can recover from principal, 303, 315. defenses, Incapacity, 840.

when lllegallty is not, 342.

wrongful act of pialntll'l', 840, 344, 346. moral wrong by plalntll'l', Is not, 346.

plalntll'l''s promise to indemnify defendant, 840, 343. nonpayment by plalntll'l', 340, 341.

payment with principal's funds, 840, 341.

that plalntll'l' purchased property of the principal at a nomInal price, 341 (note 114).

none, that plalntll'l''s payment was Involuntary, 841. none, that plalntll'l' Is Indebted to the principal, 341.

none, that principal has reimbursed plalntll'l' for his pr()- portionate share, 335.

voluntary payment, 840, 342. See, also, "Payment." cannot be set up If unknown to plalntll'l', 342. payment by defendant, 840, 343.

relinquishment or Joss of security, or remedy, 340, 344. release, 840, 345, 347.

bankruptcy, 840, 347.

stntute of limitations, 340, 348.

death or subsequent Insanity Is not, 349~

CONUSORS, 889.

see "Recognizance."

CONVENTIONAL SUBROGATION, see "Subrogation."

CONVEYANCE,

see, also, "Grantor and Grantee"; "Assumption"; "Fraudu· lent Conveyance."

by principal to surety, Is valid, 2915.

CORONER,

see "Offtcer"; "Offtclal Bond" ; "Principal."

CORPORATE SURETY, see "Corporation."

sufftclent without others, 64 (not~ 188).

Is an Insurer, 12 (note 46).

express provision 'by, limiting time for bringing suit against,

242.

CORPORATION,

see, also, "By-Laws"; "Ultra '\;Ires"; "Corporate Surety." when may be a surety, 61.

ultra vires acts of, 59, 61, 62 (note 172).

can enforce bond given to president and directors, 257 (note 667). If obligees In a bond become, liability of sureties terminates,

257.

surety for, estopped to deny legal existence of, 261, 264. cannot set up ultra vires act ot, 235, 237.

.whether discharged by an extension ot charter, 186 (note

288).

stockholder Is, 17 (note 59).

when principal, In guaranty of collection, creditor need not exhaust liability of stockholders, 222 (note 471).

stockholders as sureties for, by express contract, liable as Individuals, 833 (note 76).

subrogation to lien of, against stockholders, 285 (note 827).

llablllty ot surety for, 269, 886. liability ot guarantor for, 270.

when recoverable from principal by surety, 305, 316, 317. when recoverable from principal by ball, 312. contribution !or, 333.

must be paid by ball before forfeiture will be set aside, 4()L

C~URETIES,

see, also, "Surety." who are, 5, 320-322.

relationship may be shown by oral evidence, 823. presumptions as to who are, 321, 324.

estoppel to show relation, 324 (note 24). who are not, 322, 323.

may limit their liability, 269.

may set aside fraudulent conveyances, 327. each liable to creditor or obligee, 135, 269. payment by, 325-330, 341.

voluntary payments, 342, 343.

bankruptcy of one, no defense against creditor, 238. consent by one cannot affect rights of others, 155.

INDEX.

[The figures refer to pages.)

COUNTERCLAIM,

against creditor, ot surety's claim, 296. ot principal's claim, 272.

deposit In bank, 228 (note 498). or co-surety's claim, 273 (note 756).

ot surety, can be recovered from principal, 315.

against co-surety, of claim tor contribution, 325 (note 28), 327 (note 35), 349.

In suit for contribution, 840, 349.

COURT,

see, also, "BalJ."

no right to make alteration, 120, 125. application of payment by, 247.

right to cancel bond, 200.

surety on bond taken In, estopped to deny jurisdiction of, 261, 264.

COVENANT,

not to sue Is not a release, 248 (note 626). as defense to contribution, 347 (note 1M).

COVERTURE,"

see, also, "Incapacity"; "Married Women"; "Wife." ot surety, 59, 60.

ot principal, 235, 236.

CONVICTION,

of principal, after forfeiture, wiJI not discharge ball, 400

CREDITOR,

see, also, "Notice" ; "Obligee"; "Security." definition, 3.

cannot be agent for surety, 78, 110. may become principal, 81 (note 264).

may be principal through his agent, 297 (note 36). must respect rights ot surety, 81, 148.

by giving credit to principal, shows collateral liability of surety, 105.

by suing principal, Indicates collateral llablllty of surety, 100 (note 82).

not bound by conditions It without notice, 37, 38 (note 63). has constructive notice from face ot Instrument, 40. notice to agent of, sufficient, 40.

release by, of one co-surety, 252.

reservations of rights by, against surety, 171, 183, 251, 252. form of guaranty to protect. 414.

can sne person assuming debt, 16 (note 54), 82 (note 266).

506 INDEX.

[The 111r11rea refer to pagee.J

CREDITOR-cont'c!.

can hold principal though surety released, 253. death of, terminates contract, 205.

change In number or, 205.

knowledge ot change In number of guarantors, terminates contract, 205, 208.

rights of, against surety, not a1rected by rights ot thirc! persons, 136.

must act promptly on discovering fraud by principal, 176 (note

230), 178.

not affected by an alteration, It Innocent, 158.

If Ignorant o( the relation, may alter contract with consent of principal, 157, 158.

when may apply payment made to, 245, 246. rights of, not aft'ected by delay, 133, 140, 147.

notice to guarantor or amount advanced and principal's default, 133, 144.

not required to proceed against principal, 133, 134, 229.

not required to present claim against deceased principal's estate. 135 (note 4), 141 (note 33), 142 · (note 33), 239.

not required to exhaust security before resorting to surety, 133, 136.

can hold surety as principal, 133.

can levy on surety's property ftrst, 147.

can proceed against supplemental surety ftrst, 134 (note 4), 25L not required to give surety notice or principal's default, 133. not required to make demand or surety, 133.

burden on, to allege and prove breach, 273, 274. fraud by, on surety, 64.

on principal, 218, 2M, 253.. through agent, 67.

duress by, 71. ·

Ulegallty of contract with, 254, 255.

preventing performance by principal, cannot hold surety, 210, 217.

marrying principal, cannot hold surety, 233.

acquiring property or principal subject to his lien, discharges surety, 234.

lawful act ot, does not discharge surety, 219. must perform condition, 143, 210, 221, 222.

must use diligence to hold guarantor ot collection, 210, 222. need not exhaust stockholders of corporate principal to hold guar-

antor of collection, 222 (note 471).

burden of proof on, to show diligence against principal, In guaranty of collection, 222.

what will excuse diligence by, against principal, In guaranty of collection, 2'>..3.

[The ligures refer to page~.]

CREDITOR-Cont'd.

by collecting insurance money, does not discharge a surety or guarantor, 234. 244 (note 599).

refusal of tender by, wlll discharge surety, 242, 248.

release by, obtained by misrepresentation, discharges surety, 249. notice to, by surety, to proceed against principal, 192-198. promise by, to look to principal alone, discharges surety, 265. entrusting note to principal, when surety discharged, 218.

telling surety debt has been paid, etrect, 265, 266. counterclaims of principal against, set-otr, 272. recovery of attorney fees by, 270.

when surety can be held by, before damage to, 216.

not obliged to refund money paid by surety with full knowledge ot facts, 256.

not obliged to refund money to surety on reversal of judgment against principal, 234 (note 535), 243 (note 589).

not obliged to pay taxes on mortgaged land, 230. subrogation, see "Subrogation."

CRIME,

bail bond must recite, 390.

CRIMINAL BAIL, 389. see, also, "Ball."

CURRENCY,

see, also, "Money."

depreciated, bow far payment, 315. value of, 315, 331.

giving bank notes ls payment, 330 (note 61).

CUSTODY,

see, also, "Ball."

ot principal Is committed to ball, 891.

D

DAMAGES,

measure of, against surety, 266, 267.

no liability for Indirect or speculative, 384, 385. mitigation of, 273, 387.

Jlquidated, 215, 267, 271.

on attachment bond, 381, 383. on Injunction bond, 384.

on replevin bond, for wrongful seizure, 385--387. assessment of, against sureties on bond, 267.

when surety Hable for, though creditor without, 216. measure of, between surety and principal, 305, 314, 315, 317.

Indirect, not recoverable, 317.

Includes counterclaim of surety against creditor, 315.