FRAUD. See EQUITY.

FRAUDS (Statute of).

Page

Requisites under, to make a contract of suretyship binding
See COLLATERAL PROMISE.

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

what not

when it may be put an end to by surety, and when not
not the subject of a set-off, within 2 George 2, c. 22

ILLEGAL TRANSACTIONS.

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

INDEMNITY BONDS.

when forfeited at law

See BANKRUPTCY.

INJUNCTION. See EQUITY.

INSOLVENCY.

2

28

41, 42
42-45

Insolvent debtor's act discharges insolvent from what debts
Contribution among sureties where one is insolvent is

different at law and in equity

On insolvency of principal:

Rights of creditor against surety:

140

148-155

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

though the debt accrued due before the dis-
charge

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

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

INTEREST on money.

as to surety's liability to pay

not allowed in cases of contribution

:

34, 97
150, 151

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

Instrument of suretyship containing stipulation that
creditor on default made shall sue without delay and
he remain passive

What not held to discharge surety:

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

though principal in the meantime become bank-
rupt or insolvent

199

199, 200

196

197

ib.

ib.

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

198

198, 199

197

198

Creditor neglecting to examine accounts of accounting
party

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

By neglecting to give notice of default

though principal subsequently become bankrupt

LAW (actions and proceedings at, generally).

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

Creditor need not aver or prove default by principal, nor
demand on surety previous to action against him,
when

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

creditor, by electing to sue them jointly, cannot
afterwards sue them severally

Where creditor has security from principal or surety, he
may nevertheless proceed against surety first
Surety's right to compel creditor to proceed for surety's
benefit, when

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

84

ib.

85

ib.

89

ib.

93

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

Where surety has taken a security from principal, he has
no right to action of assumpsit against him
Where surety has a bond of indemnity he must show he
has been damnified before he can sue thereon
Surety, by paying money into court, or pleading a tender in
an action against him by creditor, admits the validity of
the contract

134

126. 128

Surety, by paying money into court the value of goods

119

LAW (actions and proceedings at, generally)—continued.

distrained in action on a replevin bond, may stay pro-
ceedings by landlord after judgment by default
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
Surety is not allowed the expenses of defending an action
he ought not to have defended

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

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

Page

120

119

135

.

ib.

Action for contribution :

Is a modern proceeding

148

155

ib.

ib.

232, 233

Is only adapted to a simple case

Separate actions must be brought against each co-
surety

Action for costs of defending action for contribu-

tion

of the writ in the action

152

ib.

Of actions by creditor against surety:

The nature of the action depends upon the instrument

of suretyship

As to the declaration :

If framed on a deed, it must be pleaded with a

Guarantee addressed to one of several partners

may be declared on as given to all

In case defendant plead want of consideration and

signature within the statute of frauds

Where there are several sureties and each has paid his

share :

each must sue principal separately

exception

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

233

ib.

142

Broker employed to purchase, guaranteeing principal's bill
without authority, has none on principal's bankruptcy 142, 143

LIMITATIONS (Statutes of).

Begin to run when proceedings may be instituted

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

Payment made by one of two or more contractors when

contract is several, the effect of

where the contract is joint

Payment made by representative of one of two joint con-

tractors, the effect of

When a bar to a bond

to a judgment

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

To sheriff in replevin bond

When necessary to determine a continuing guarantee

Page

223

221

222
ib.

ib.

223

ib.

28

84

33

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

By surety to creditor in case of principal's bankruptcy not
to sign his certificate, when necessary and when not
Surety may compound with creditor without giving notice
of his intention to principal

95

96, 97

131

197, 198

Surety not discharged, though creditor fail to give him
notice that principal has made default
though principal subsequently become bankrupt
or that accounting party has been guilty of embezzle-

Where the party promising is not liable out of his own
funds

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

7, 8. 30-32

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

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

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

23-26

45-48

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

otherwise where contracted with a banking-house

or company

47, 48

48-50

When one partner may, by his signature, in the name of
the firm, bind the others

If he have signed improperly he will nevertheless bind
himself

Where principal and surety subsequently entered into
partnership, creditor could not prove in bankruptcy
against their joint estate

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

prove

79

80, 81

107

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

Application by principal:

158

His right to apply the payment as he pleases

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-

If principal fail to make application, then creditor
may

Application by law:

158. 163-165

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

Rule of application in order of priority of time on
different debts or accounts, or different items of
same account

162

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