Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Page

DISCHARGE OF SURETY-continued.

By creditor-continued.

By acts done by creditor which may be prejudicial to
surety

157.177

By agreement between creditor and principal without
the sanction of surety which alters his situation

166. 180, 181

By taking out execution against principal and after-
wards waiving it

176, 177. 199

or afterwards taking payment for part and secu-
rity for rest

By giving time to principal for payment
Reason why it discharges surety

Principle when first applied at law

177

167

170, 171. 178

183

or agreeing to give time, if for a good considera-

tion

[ocr errors]
[ocr errors]

167, 168

though agreement not signed by creditor, if
acted upon
Condition against, depending on the performance
of some act by principal left undone, is inope-
rative

167

Though the time were given in consequence of
principal's inability to pay

or that no injury had accrued

or that it was for surety's advantage

169

By taking a bond or promissory note for the debt
payable at a subsequent period

171

ib.

ib.

ib.

172

[blocks in formation]

Where the time of payment is not specified in the
instrument of suretyship

What amounts to giving time

Doctrine first adopted in equity

In cases of bills of exchange

In case of replevin bond

The instrument giving time must be of as high a

nature as the one creating the surety's lia-
bility, to be a discharge at law.

But in equity, if by parol, sufficient

Where not held to discharge the surety:

[merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

Where the arrangement was made by the re-

quest or instrumentality of surety 181
What held not to be a recognition by
surety

ib.

[blocks in formation]

Giving time to one of several sureties does not dis-
charge the others in respect of their shares.
except at law in case of the co-sureties being
jointly or jointly and severally bound

By compounding with principal:

The same principles apply to compounding as to
giving time without consent of surety

182

[ocr errors]

192

ib.

187, 188

even though it be proved every thing was done by
creditor for benefit of surety

though the composition arose from mistake

[blocks in formation]

188

188, 189

191

If surety have previously paid part and given
security to pay the rest

If creditor at time of compounding stipulate
with principal for reservation of his
rights against surety

But this reservation must clearly appear

188

189

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

If the latter security do not operate as a satis-
faction of the former so as to prevent
surety suing thereon

200. 203

If creditor's remedy be accelerated by the lat-
ter security though capable of extinguish-
ing the former one

If taken by creditor with consent of surety
If the intention be that the latter be only col-
lateral

By neglect in regard of securities:

Where any of them are lost

202
ib.

202, 203

203

203-206

or allowed to get into principal's possession

whether it arise from error, mistake, or
neglect

But not where the security being a bill of ex-
change, the surety has no notice of non-
payment, if no party to the bill

204

207, 208

By not properly performing or varying the original
agreement:

Page

DISCHARGE OF SURETY-continued.

By creditor-continued.

Where such variation amounts to a new agree-
ment

208-213

Cases arising out of statutory regulations requir-
ing sureties for certain duties

213-215

By entering into secret or fraudulent agreements with
principal:

Where the surety is wholly ignorant thereof:

Cases of this

Where the surety is a party thereto :

In case of illegal agreement

215-218

In case of fraudulent preference being given
by principal to creditor with a surety for

same

In cases of composition with creditors of
principal

In case of insolvency of principal

Where a breach of covenant had been committed by lessee

for the purpose of determining lease for the performance
of the covenants, where there was a surety

See LACHES.

By operation of law:

By the statute of bankruptcy,

See BANKRUPTCY.

By the statute of insolvency,
See INSOLVENCY.

By the statutes of limitations,

See LIMITATIONS (Statutes of).

ELECTION.

By creditor to give credit solely to party giving the promise
makes the promise an original one

218

ib.

219

ib.

89

17, 18

By creditor to sue principal and surety jointly in a joint
and several contract, prevents him from afterwards suing
them severally.

85

EQUITY (relief and proceedings in, generally).
When equity will discharge recognizance of surety for

[merged small][merged small][ocr errors]

When equity will discharge a bond in a writ of ne exeat
regno

53

When the creditor may proceed in equity as well as at law
Where surety is entitled in equity to relief he cannot
have at law

94

116

Where instrument of suretyship under seal has been
discharged by parol

187-231

Where creditor has a personal remedy against the
surety, and can resort to a fund for payment which
the surety cannot

116, 117

Where the principal can claim in equity a right of set-off 117
In what cases equity will grant or refuse relief by injunc-
tion to surety where he has allowed a verdict or judg-
ment at law to be had against him

119, 120

EQUITY (relief and proceedings in, generally)-continued.

Equity will not compel an assignment in favour of surety
of a judgment on an action at law after it has been
satisfied
Where principal has conveyed or assigned property to which
at that time he had no title, on his subsequently acquir-
ing a title equity will compel him to execute a new assu-
rance thereof

Relief in cases of accident

Mistake

Fraud

Equity will not extend the liability of surety beyond the
legal effect of instrument

Concurrent jurisdiction of courts of equity with those of
common law in cases of discharge of surety by creditor
giving time to principal

Page

116

129

90

91, 92

129

90

182, 183

Relief given to surety on the ground of public policy,
though particeps criminis

But without costs

119-220

[merged small][merged small][merged small][merged small][ocr errors]

In case of inadequacy of consideration, surety is entitled
relief

Where equity will order deeds to be delivered up
Surety is entitled to be relieved from his liability, when
When not

125, 126
126

Surety may file a bill against principal after payment, when,
Benefit of a decree against principal and surety as co-defen-
dants in a suit by creditor on payment by surety, so
that surety may prosecute it against principal
In case of contribution to prosecute it against co-
sureties

132

133

156

Relief in cases of contribution :

where one of the sureties is insolvent, different relief
in equity from that at common law

[blocks in formation]

To what amounts

Where the accounts are intricate

Where there is a great difficulty in ascertaining
the quantum of contribution to which each is
liable

Where the subject-matter of the security is joint,
but each co-surety is bound in distinct penalties
Where one or more of the co-sureties have become
insolvent and the others are required to con-
tribute

Parties to bill:

In a suit by creditor on a joint or joint and several

undertaking:

all persons, principals and sureties, must be parties,
and why

ib.

ib.

ib.

234, 235

EQUITY (relief and proceedings in, generally)-continued.

Page

In case of debtor's bankruptcy:

His assignees must be parties

237

In case of debtor's death:

why his real representatives

His representatives, both real and personal, must
be parties

ib.

ib.

In case of suit by surety against creditor on ground of
fraud and being over paid

ib.

In case of suit by bail against sheriff for undue assign-
ment of the bail-bond

ib.

In case of suit by surety for excise officer upon bond
given by him to commissioners of excise
Exceptions to the general rule of making all persons
interested, parties

EVIDENCE and proof generally.

Creditor giving time to principal according to custom of
trade, required to prove custom, when
and that the custom has been invariable

237, 238

238, 239

Parol evidence, where admitted in equity
where not admitted at law

In actions by creditor :

172

172

183-187

231

227

227, 228

228

He must prove the averments in the declaration
unless defendant's form of pleading amounts to
an admission

any variance between the declaration and the proof is
fatal

The principal is a competent witness for creditor against
surety, semble

ib.

229

228, 229

230

His admissions not sufficient if alive
Entries by him in case of death, when good
Name of surety's bail ordered to be struck off the bail-
piece to enable bail to be a witness for surety
Surety cannot, on a plea of non est factum, where the
instrument of suretyship is under seal, prove illegal
consideration aliunde

When admitted to connect written instruments
In actions by surety against principal:

What he must prove

In actions by a surety against his co-sureties for con-

tribution:

He must prove joint obligation
application having been made to defendant to pay

their shares

His own payment to creditor

231

78

232

ib.

ib.

ib.

ib.

Where a verdict had been obtained against the plaintiff,
and the debt and costs had been levied against him,
as to the sufficiency of the record of this judgment
as evidence for the plaintiff
Principal having obtained his certificate after bank-
ruptcy, is not a competent witness for defendant, where 233
as to creditor being a competent witness for surety plaintiff

ib.

« ΠροηγούμενηΣυνέχεια »