Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Page

FRAUD. See EQUITY.

FRAUDS (Statute of).
Requisites under, to make a contract of suretyship binding

See COLLATERAL PROMISE.

2

28

.

GIVING TIME. See DISCHARGE OF SURETY.
GUARANTEE. See COLLATERAL PROMISE.

What considered absolute, and what only a proposition tend-

ing thereto.
Continuing or standing guarantee, what

41, 42
what not

42-45
when it may be put an end to by surety, and when not

52, 53
not the subject of a set-off, within 2 George 2, c. 22

92
ILLEGAL TRANSACTIONS.

create no liability in surety towards creditor
violation of excise laws not so considered .

ib.
See EQUITY.

88

INDEMNITY BONDS.
when forfeited at law

See BANKRUPTCY.

126-128

INJUNCTION. See Equity.
INSOLVENCY.

Insolvent debtor's act discharges insolvent from what debts 140
Contribution among sureties where one is insolvent is
different at law and in equity

148–155
On insolvency of principal :
Rights of creditor against surety :

Where creditor is grantee of an annuity from
principal

96
against surety's representatives on his death pre-
vious to damnification, to have money to answer
claim set apart

109
Rights of surety against principal :
Surety paying subsequent to insolvent's discharge,
may recover

140
though the debt accrued due before the dis-
charge

ib.
Similarly in case of principal's discharge under
the Lords' Act

ib.
Where surety has given, after the discharge, a

new security to creditor in satisfaction of the
old debt, it is insufficient to support an action
against the principal

140, 141
INTEREST on money.
as to surety's liability to pay

34, 97
not allowed in cases of contribution

150, 151

[ocr errors]

Page
LACHES of creditor with regard to surety.
What held to discharge surety:

Holder of bill of exchange taking out execution against
acceptor and then waiving it

199
Instrument of suretyship containing stipulation that

creditor on default made shall sue without delay and
he remain passive

199, 200
What not held to discharge surety :

By the mere passive conduct of creditor in not suing 196
Not suing for five years

197
though principal in the meantime become bank-
rupt or insolvent

ib.
Creditor neglecting to examine accounts of accounting
party

ib.
Where holder of bill of exchange, after protesting it
and giving notice, forbears to sue

198
Where holder of bill of exchange, after signing judg-
ment, fails to prosecute it

198, 199
By neglecting to give notice of default

197
though principal subsequently become bankrupt 198

LAW (actions and proceedings at, generally).

Creditor's remedy by action against surety on default by
principal

84
Creditor need not aver or prove default by principal, nor

demand on surety previous to action against him,
when

ib.
Where the contract is joint as well as several, creditor may
sue principal and surety jointly

85
creditor, by electing to sue them jointly

, cannot
afterwards sue them severally

ib.
Where creditor has security from principal or surety, he
may nevertheless proceed against surety first

89
Surety's right to compel creditor to proceed for surety's
benefit, when

ib.
If plaintiff in replevin be nonsuited for want of a plea in

bar, the avowant may sue the sureties, when
Where, in case of contempt and bail-bond with sureties,

plaintiff may proceed against defendant in equity and
against his sureties at law

94
Surety's right of action against principal after payment 132, 133
Where surety, instead of paying creditor, gives a new se-

curity, he cannot hold principal to bail upon an affidavit
of debt

140, 141
Where surety has taken a security from principal, he has
no right to action of assumpsit against him

134
Where surety has a bond of indemnity he must show he
has been damnified before he can sue thereon

126. 128
Surety, by paying money into court, or pleading a tender in

an action against him by creditor, admits the validity of
the contract

119
Surety, by paying money into court the value of goods

93

ib.

Page
LAW (actions and proceedings at, generally)-continued.

distrained in action on a replevin bond, may stay pro-
ceedings by landlord after judgment by default

120
Surety is not entitled to inspection of a deed in the posses-

sion of the creditor, and to which the surety is not a
party

119
Surety is not allowed the expenses of defending an action
he ought not to have defended

135
but where he was surety to the crown, and an extent

had been taken out against his effects, and expenses
had been incurred by disputing the debt, they were
allowed

ib.
Contribution in case of the insolvency of a co-surety is
different in law and equity

148
Action for contribution:
Is a modern proceeding

155
Is only adapted to a simple case

ib.
Separate actions must be brought against each co-
surety

ib.
What surety must prove
prove

232, 233
Costs :
Action for costs of defending action for contribu-
tion

152
of the writ in the action
Of actions by creditor against surety:
The nature of the action depends upon the instrument
of suretyship

224
As to the declaration :
If framed on a deed, it must be pleaded with a

profert, and why
otherwise not

225
What ought to be stated therein

225, 227
Guarantee addressed to one of several partners
may be declared on as given to all

226
exceptions

226, 228
As to the replication :

In case defendant plead want of consideration and
signature within the statute of frauds

225
Demurrer to plea:
Its effect as on admission

ib.
Pleas to, by surety :
What they must show

225, 226
Of actions by surety against principal:
What he must prove

232
Where there are several sureties and each has paid his

share :
each must sue principal separately

233
exception

ib.
LIEN.

Factor becoming surety for his principal, has lien on goods
sold

142
Broker employed to purchase, guaranteeing principal's bill

without authority, has none on principal's bankruptcy 142, 143

ib.
ib.

28

Page
LIMITATIONS (Statutes of).
Begin to run when proceedings may be instituted

223
Where the promise is one of indemnity merely, statutes
begin to run from time of damnification

221
Payment made by one of two or more contractors when
contract is several, the effect of

222
where the contract is joint
Payment made by representative of one of two joint con-
tractors, the effect of

ib.
When a bar to a bond

223
to a judgment

ib.
LORDS' ACT-See INSOLVENCY.
MISCARRIAGE-See ColLATERAL PROMISE.
MISTAKE-See EQUITY.
NE EXEAT REGNO (writ of)—See EQUITY.
NOTICE.

Creditor need not give surety notice of his intention to act

upon the guarantee
Creditor need not give surety notice of principal's non-
performance before action, when

84
To sheriff in replevin bond

33
When necessary to determine a continuing guarantee 41, 42
Of creditor's intention to sue principal is necessary in order

to entitle creditor to costs of fruitless suit against princi-
pal, semble

95
By surety to creditor in case of principal's bankruptcy not

to sign his certificate, when necessary and when not 96, 97
Surety may compound with creditor without giving notice
of his intention to principal

131
Surety not discharged, though creditor fail to give him

notice that principal has made default 197, 198
though principal subsequently become bankrupt

198
or that accounting party has been guilty of embezzle-
ment

197
provided there is no fraud in creditor

ib.
NUDUM PACTUM.
What "

55. 59. 168-170 (n)
ORIGINAL PROMISE.
How it differs from a collateral promise

4
What held to be

7, 8. 30-32
Where the party promising is not liable out of his own
funds

12, 13
Where the person promised for never was himself liable 13
where he is an infant

ib.
where the promise was made without his authority, or
subsequent ratification

13-16
where there was no privity between the person pro-
mised for and the promissee

17

one

.

Page
ORIGINAL PROMISE-continued.

From the conduct of the promissee:
By electing to consider the promise as an original

18
By giving no credit to the person promised for 18—23
Where the person promised for ceases to be liable from the
effect of the promise itself

23—26
PARTIES to a Bill in Equity-See Equity.
PARTNERSHIP.
Determination of the contract of suretyship:

By death or retirement of one of several partners
to whom the undertaking is given

45-48
By death or retirement of one of several partners un-
dertaken for

47, 48
otherwise where contracted with a banking-house
or company

48-50
When one partner may, by his signature,

in the name of
the firm, bind the others

79
If he have signed improperly he will nevertheless bind
himself

80, 81
Where principal and surety subsequently entered into

partnership, creditor could not prove in bankruptcy
against their joint estate

107
on bankruptcy of partners, as to creditor's right to
prove

111, 112
one partner compounding with principal, will thereby

discharge him as to all the partners, semble
PAYMENTS (application of).

Application may be express or implied 158. 160, 161. 163
Application by principal :
His right to apply the payment as he pleases

158
But he must declare his application at the time 159
when and when not implied

158. 160, 161
after application made by principal, it cannot be va-
ried by surety or creditor

159, 160
as to discharge of surety thereby 158, 159. 161, 162
Application by creditor :

If principal fail to make application, then creditor
may

158. 163-165
Application by law :

Takes place where none has been made by principal or

creditor, either expressly or by implication 158. 165
In case of two debts, one bearing interest and the
other not

162
Rule of application in order of priority of time on

different debts or accounts, or different items of
same account

165, 166
Where there are two debts, the one legal and the other

illegal, the law will apply the payment in discharge
of the legal one

166

191

.

.

« ΠροηγούμενηΣυνέχεια »