The Law of Suretyship: Covering Personal Suretyship, Commercial Guaranties, Suretyship as Related to Negotiable Instruments, Bonds to Secure Private Obligations, Official and Judicial Bonds, Surety Companies

Arthur Adelbert Stearns

W.H. Anderson Company, 1903 - 747 páginas

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CHAPTER I	1

The nature of the contract	2

Personal suretyship	3

Parties to the contract	4

Surety and guarantor distinguished	5

Indorser	7

Irregular indorsement before and after delivery	9

Irregular indorser held only as indorser	10

Who are public officers	277

The duty of a public officer to give a bond arises from statute	281

Bonds of deputies	284

Qualification and approval of sureties	286

The signing of the bond by the principal	288

Liability of sureties as affected by failure to deliver or furnish the bond within the time required by law	289

Sureties upon official bonds discharged by alterations to which they do not consent	292

Alteration in the duties of the principal by amendment to the law	293

Who may become promisors in suretyship	11

Disability by statute	13

Duress	14

Consideration	16

Suretyship contract must be express	17

Ambiguous words How interpreted	19

Estoppel of promisor to deny recitals in the contract	20

Incompleted contracts of suretyship	21

Statutory requirements	22

Contracts in suretyship executed by agents	23

Suretyship by operation of law	24

CHAPTER II	26

The English statute	27

Meaning and scope of the word agreement	29

Same subject continued American decisions	30

The Memorandum or Note	33

Same subject continued	34

The signature to the memorandum	36

Joint liability of promisor and another	43

SECTION PAGE 65 Federal court rule as to notice of acceptance of guaranty	80

Rule of the State courts as to notice of acceptance of guaranty	83

Notice to guarantor of default of principal	86

Cases in which notice to guarantor of default is necessary	89

Joint and several guaranties	92

Guaranty covers interest	93

Revocation of guaranty	94

CHAPTER IV	97

Material alteration of principal contract	98

Same subject continued	99

Same subject continued	102

Alteration of principal contract by the addition of new parties	105

Alteration of principal contract by a change in the duties of the principal	106

Variation in amount of advancements under limited guaranty Effect upon guarantor	108

Change of parties	109

Alterations beneficial to the surety or guarantor	110

Alterations enlarging the principal liability	113

Discharge of promisor by extension of time	114

Agreement for extension must be for a consideration	115

Payment of advance interest as a consideration for extension	116

Agreement for extension must be for a definite time	119

Collateral securities maturing at a later date	120

Extension of time by Act of Legislature	121

Giving time to surety Effect upon cosurety	122

Giving time is not a defense if the surety if fully indemnified	123

Extension of time as a defense to persons who are in the situa tion of a surety	124

Extension by appeal or continuance in judicial proceedings	127

Extension of time with reservation of rights against the surety	128

Agreement not to sue as distinguished from agreements to ex tend Effect upon surety	129

Waiver of the defense of extension of time	130

Delay of the creditor in pursuing remedies against the principal as a defense to the surety or guarantor	131

Payment or other satisfaction as a discharge of the surety or guarantor	133

Liability against surety or guarantor revived if payment or sub stituted security is void	135

the creditor has a lien	137

Release of securities by the misconduct of the creditor	140

Release of securities by operation of law	143

Release by the creditor of property of principal in his possession or control but not held as security for the suretyship debt	145

Whatever releases principal will release the surety or guarantor	146

Same subject Release of principal by operation of law	147

Same subject In cases where the release by operation of law is not the result of the fault or procurement of the creditor	149

Suretyship obligations obtained by fraud of the creditor	150

Same subject Concealment or nondisclosure of facts by the creditor	152

Discharge of promisor by failure to disclose facts coming to the knowledge of the creditor after the execution of the con tract	156

Fraud and misconduct of the principal	158

Misconduct of the principal by delivering suretyship obligations without complying with conditions	159

Suretyship contracts made in reliance upon promises of the cred itor	162

Conditional contracts of suretyship Parol evidence not compe tent to show conditions	163

Same subject Parol evidence competent in certain cases	166

Release of promisor by the creditor	168

Release of a copromisor by the creditor	170

Defense of the promisor based upon the failure of the creditor to sue the principal when requested	173

Same subject The doctrine of Pain vs Packard	176

The principals right of setoff or counterclaim against the cred itor as a defense to the promisor	178

Defense based upon the right of the promisor to control the ap plication of collateral	181

Revocation Death of the promisor	184

CHAPTER V	188

Regular indorsement or indorsers in the chain of title	191

Suretyship defenses of regular indorsers	192

Regular indorser not entitled to special equities of accommoda tion promisors	194

Special indorsements	195

SECTION PAGE 125 Conditional and restrictive indorsements	197

Conditions are restrictions upon regular indorsements shown by parol	199

The view that conditions and restrictions upon regular indorse ments can not be shown by parol	203

Anomalous or irregular parties to negotiable instruments	205

Presumption as to contract made by irregular indorser signing before delivery	209

Presumption as to contract made by irregular indorser signing after delivery	212

Parol proof as to whether irregular indorser signed before or after delivery	213

Parol proof as to the kind of contract intended by the irregular indorsement in blank	214

Indorsement in blank by a stranger upon a note payable to the order of the maker	217

Irregular indorser not bound by the implied warranties of the regular indorser	219

Indorsement for transfer in the form of a guaranty	220

Defenses of irregular indorsers Order of liability Contribu tion	222

The right of the holder to fill in bank indorsements	224

CHAPTER VI	228

office	229

A bond is a specialty Form and execution	230

The signing and sealing of a bond	231

Delivery and acceptance are necessary to the validity of a bond	234

Incomplete bonds Right of the obligee to fill blanks	235

The incorporation of other instruments into the bond by refer ence	236

Consideration	238

Bonds obtained by fraud or misrepresentation	240

Parol evidence in aid of construction	242

Commencement and duration of liability upon a bond	244

Bonds of general indemnity	246

Bonds to secure building contracts with covenants for the pay ment of labor and material claims	248

Alteration of the principal contract as a defense to sureties upon the bond	251

Alterations in bond as a defense to the sureties	254

Surety upon bond estopped from denying the recitals of the bond	255

Measure of damages upon breach of the conditions of a bond	257

statute	260

Interest as an element in the measure of damages	262

Bonds to prevent performance of public duty or to induce acts in violation of public duty are void	265

Discharge of surety upon a bond by payment or acts equivalent to payment	266

Statutes of limitations as a defense to sureties upon a bond	267

As to who are proper parties in an action upon a bond	271

Joinder of parties plaintiff	273

Joinder of parties defendant	274

vii	276

Extension of tenure of office by legislative act	296

Special bonds given by officers who have also given general bonds	297

Bonds of public officers not retroactive and cover only the period named in the bond	299

SECTION PAGE	302

Same subject Where the wrongful act was partly in one and partly in another term	303

Liability of surety for the negligence or error in judgment of a public officer	304

Liability of sureties for failure of public officer to account for the use of public funds	305

Sureties not liable for defaults of principal in not performing his contracts with persons dealing with him in his official	309

Sureties upon official bonds are not released by the negligence or misconduct of other officials	310

Sureties not liable for failure to account for money received by the principal outside the scope of his office	311

wrongs committed colore officii	314

View that sureties are not liable for wrongs of sheriff or constable committed colore officii	319

Liability for loss of public money by failure of the bank used as public depository	320

Liability for loss of public money by theft or robbery	324

Liability against judicial officers acting without jurisdiction	327

Liability of judicial officers for ministerial acts	331

Liability of principal for acts of his deputy	333

Liability on bond of a notary public	334

Presumption that official duty has been performed	337

Evidence against sureties on official bonds	338

Same subject Judgment against principal as evidence against the surety	340

Same subject View that judgment against the principal is prima facie evidence against the surety	342

Same subject View that judgment against the principal is con	343

clusive against the surety	344

Limitations upon actions against sureties on official bonds	345

CHAPTER VIII	347

Suretyship in the application of legal remedies	348

Bonds for stay of execution or appeal	352

Statutory requirements as to appeal or stay bonds	354

Irregularities or defects whereby bonds are invalidated	357

Immaterial defects in the contract	359

Failure to perfect the appeal	360

Conditions upon which appeal or stay bonds become payable	362

Same subject Affirmance by failure to prosecute appeal	364

As to when action may be brought upon bond for appeal	367

Measure of damages in an action upon an appeal or stay bond 339	369

Successive appeal bonds	374

Defenses in actions upon appeal bonds Estoppel	375

Appeal from a justice court	376

Bonds to procure injunction	377

When action for damages upon an injunction bond accrues	379

Construction of bonds to procure injunction	383

Defenses of sureties upon injunction bonds	384

Measure of damages for breach of injunction bond	386

Same subject Defendants expenses in procuring a dissolution of injunction	388

Attachment bonds	390

defects in form	392

Whether damages for malicious prosecution are recoverable upon bond to procure attachment	393

Forthcoming or redelivery bonds	395

Bonds to discharge attachment	396

When action accrues upon bonds in attachment	398

Good faith of the plaintiff or probable cause for attachment not a defense in actions upon bonds	401

Sureties estopped from questioning the regularity of the proceed ings out of which their liability arises	402

Exoneration of sureties in attachment proceedings	403

Attachment bonds are available in any court to which the case is taken on appeal	404

Measure of damages in actions upon attachment bonds	405

Replevin bonds	407

Conditions of bonds in replevin	408

What constitutes a breach of a replevin bond	409

Sureties upon replevin bonds are concluded by the final order in the replevin action	410

Measure of damages in action upon replevin bond	411

Defenses in action on replevin bonds	413

Bonds given in the course of the administration of estates of deceased persons	415

The scope of the administration bond covers all assets and equi ties of the estate	418

Successive administration bonds are cumulative	420

As to whether judgment or order of court against the principal is necessary to a cause of action on the administration bond	421

The sureties upon the bond of an administrator are concluded by judgment against the principal	423

Who may maintain action on administration bonds	425

Bonds of guardians Scope of liability	426

Settlement of guardians accounts Release of sureties on the bond	428

An adjudication against the guardian is conclusive against the sureties	429

Bonds given in the course of insolvency proceedings	430

Bail bonds	431

Conditions in bail bonds Time of appearance	432

Same subject Place of appearance	434

Defenses against bail bonds	435

Discharge or exoneration of bail	437

CORPORATE SURETYSHIP	441

Corporate compensated suretyship is within the statutes	448

Stipulations discharging surety if claim is not made within	456

Subrogation	462

Subrogation is a mere equity and will not be applied against	468

Surety paying judgment against the principal will be subro	476

Subrogation applies to one in the situation of a surety	483

SECTION PAGE 270 Subrogation among cosureties	489

Subrogation between successive sureties	490

Subrogation in favor of the creditor to securities held by the surety	495

Same subject The view of the English courts	499

Remedies of the surety in cases where he is deprived of subroga tion by act of the creditor	501

When surety will be subrogated to the principals claims of set off against the creditor	502

Subrogation not available to one who pays the debt of another as a mere volunteer	503

Conventional subrogation	506

Waiver of subrogation	508

Contribution between cosureties General principles	509

Contribution between sureties bound by different instruments	513

A surety for a surety not liable in contribution	516

Contribution as affected by special contract between sureties	517

Contribution between persons in the situation of a surety	518

One who becomes surety at the request of a cosurety is liable in contribution to such cosurety	519

One who aids in the commission of the default is barred from the right of contribution	521

When contribution may be enforced	522

Equitable contribution or the right of a surety to call upon his cosurety for exoneration before payment	524

Amount recoverable in contribution	525

Contribution as affected by the insolvency of one or more cosure ties	526

Surety seeking contribution must account to his cosureties for indemnity furnished him by the principal	527

Surety may enforce contribution even though payment by him was without compulsion	531

Contribution as affected by the release of one or several cosure ties	534

Bankruptcy of a surety Effect on cosuretys right of contribu tion	535

Contribution between parties to bills and notes	537

The right of indemnity against the principal	539

When right of indemnity arises	543

Equitable exoneration	544

Right of indemnity arises from payment or transactions equiva lent to payment	545

Amount recoverable by indemnity proceedings	547

Right of indemnity as affected by the nonliability of the princi pal	549

When judgment against the surety or guarantor is conclusive	553

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The Law of Suretyship: Covering Personal Suretyship, Commercial Guaranties ...
Arthur Adelbert Stearns
Vista completa - 1903

Términos y frases comunes

action agreement alteration amount Ante Sec appeal appeal bond apply authority bail bond Bank binding blank bound breach chain of title claim co-surety collateral common law condition Conn consideration Court Courts of Equity creditor damages default defendant delivery duty enforced equity estopped estoppel execution fact failure funds guaranty held holder holding implied indemnity injunction instrument intent Iowa joint judgment Law Merchant liability lien main contract maker Mass ment Minn negotiable instruments notice obligation obligee obligor official bond parol parties pay the debt payee payment performance person plaintiff principal debtor promise promisor in suretyship public officer reason recites recover regular indorser release replevin rule signed Smith Statute of Frauds stipulated subrogation surety or guarantor suretyship contract Tenn tion tract transaction trust undertaking usurious

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Información bibliográfica

Título	The Law of Suretyship: Covering Personal Suretyship, Commercial Guaranties, Suretyship as Related to Negotiable Instruments, Bonds to Secure Private Obligations, Official and Judicial Bonds, Surety Companies
Autor	Arthur Adelbert Stearns
Editor	W.H. Anderson Company, 1903
Largo	747 páginas

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