Surety

KNOW OF A SURETY

  • Genesis 15:13
    And he said unto Abram, Know of a surety that thy seed shall be a stranger in a land that is not theirs, and shall serve them; and they shall afflict them four hundred years;
  • Proverbs 6:1 My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger,
  • Proverbs 11:15 He that is surety for a stranger shall smart for it: and he that hateth suretiship is sure.
  • Proverbs 17:18
    A man void of understanding striketh hands, and becometh surety in the presence of his friend.
  • Proverbs 20:16
    Take his garment that is surety for a stranger: and take a pledge of him for a strange woman.
  • Proverbs 27:13
    Take his garment that is surety for a stranger, and take a pledge of him for a strange woman.
  • Hebrews 7:22
    By so much was Jesus made a surety of a better testament.

 

Taken from Bouvier’s Law Dictionary 1856 Edition

SURETY, contracts. A person who binds himself for the payment of a sum of money or for the performance of something else, for another, who is already bound for the same. A surety differs from a guarantor, and the latter cannot be sued until after a suit against the principal. 10 Watts, 258.

2. The surety differs from bail in this, that the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety cannot be discharged by such surrender.

3. In Pennsylvania it has been decided that the creditor is bound to sue the principal when requested by the surety, and the debt is due; and that when proper notice is given by the surety that unless the principal be sued, be will consider himself discharged, he will be so considered, unless the principal be sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P. in Alabama, 9 Porter, R. 409. But in general a creditor may resort to the surety for the payment of his debt in the first place, without applying to the principal. 1 Watts, 28O; 7 Ham. part 1, 223. Vide Bouv. Inst. Index, h. t.; Contribution; Contracts; Suretyship.

SURETY OF THE PEACE, crim. law. A security entered into before. Some competent court or officer, by a party accused, together with some other person, in the form of recognizance to the commonwealth in a certain sum of money, with, a condition that the accused shall keep the peace towards all the citizens of the commonwealth. A security for good behaviour is a similar recognizance with a condition that the accused shall be of good behaviour.

2. This security may be demanded by a court or officer having jurisdiction from all persons who threatened to kill or to, injure others, or who by their acts give reason to believe they will commit a breach of the peace. And even after an acquittal a prisoner may be required to give scourity of the peace or good behaviour, when the circumstances of the case justify a court in believing the public good requires it. 2 Yeates, R. 437 Bac. Ab. h. t.; 1 Binn. R. 98, note; Com. Dig. h. t.; Yin. Ab. h. t.; Bl. Com. B. 4, c. 18, p. 251.

3. To obtain surety to keep the peace, the party requiring it must swear or affirm be fears a present or future danger, and not merely swear or affirm to a breach of the peace which is past; it is usual, however, to state such injuries, and when the circumstances warrant it, a threat of their repetition, as a legitimate ground for fearing future injury, which fear must always be stated. 1 Chit. Pr. 677.

4. A recognizance to keep the peace is forfeited only by an actual attack or threat of bodily harm, or burning a house, and the like, but not by bare words Of h an choler. Hawk. h. 1, c. 60, s. 2. Vide Good Behaviour.

SURETYSHIP, contracts. An accessory agreement by which a person binds himself for another already bound, either in whole or in part, as for his debt, default or miscarriage.

2. The person undertaken for must be liable as well as the person giving the promise, for otherwise the promise would be a principal and not a collateral agreement, and the promissor would be liable in the first instanee; for example, a married woman would. Not be liable upon her contract, and the person who should become surety for her that she would perform it would be responsi-ble as a principal and not as a surety. Pitm. on P. & S. 13; Burge on Sur. 6; Poth. Ob. n. 306. If a Person undertakes as a surety when he knows the obligation, of the principal is void, he becomes a principal: 2 Id. Raym. 1066; 1 Burr. 373.

3. As the contract of suretyship must relate to the same subject as the principal obligation, it follows that it must not be of greater extent or more onerous’ either in its amount, or in the time or manner, or place of performance, than such principal obligation; and if it so exceed, ii will be void, as to such excess. But the obligation of the surety may be less onerous, both in its amount, and in the time, place and manner of its performance, that of the principal debtor; it may be for a less amount, or the time may be more protracted. Burge, on Sur. 4, 5.

4. The contract of suretyship may be entered into by all persons who are sui juris, and capable of entering into other contracts. See Parties to contracts.

5. It must be made upon a sufficient consideration. See Consideration.

6. The contract of suretyship or guaranty, requires a present agreement between the contracting parties; and care must be taken to observe the distinction between an actual guaranty, and an offer to guaranty at a future time; when an offer is made, it must be accepted before it becomes binding. 1 M. & S. 557; 2 Stark. 371; Cr. M. & Ros. 692.

7. Where the statute of frauds, 29 Car. II., c. 3, is in force, or its principles have been adopted, the contract of suretyship “to answer for the debt, default or miscarriage of another person,” must be in writing, &c.

8. The contract of suretyship is discharged and becomes extinct, 1st. Either by the terms of the contract itself. 2d. By the acts to which both the credi-tor and principal alone are parties. 3d. By the acts of the creditor and sure-ties. 4th. By fraud. 5th. By operation of law.

9. – §1. When by his contract the surety limits the period of time for which he is willing to be responsible, it is clear he cannot be beld liable for a longer period; as when he engages that an officer who is elected annually shall faithfully perform his duty during his continuance in office; his obligation does not extend for the performance of his duty by the same officer who may be elected for a second year. Burge on Sur. 63, 113; 1 McCord, 41; 2 Campb. 39; 3 Ad. & Ell. N. S. 276; 2 Saund. 411 a; 6 East, 512; 2 M. & S. 370; New R. (5 B. & P.) 180; 2 M. & S. 363; 9 Moore, 102.

10. – §2. The contract of suretyship becomes extinct or discharged by the acts of the principal and of the creditor without any act of the surety. This may be done, 1. By payment, by the principal. 2. By release of the principal. 3. By tender made by principal to the creditor. 4. By compromise. 5. By accord and satisfaction. 6. By novation. 7. By delegation. 8. By set-off. 9. By alteration of the contract.

11. – 1. When the principal makes payment, the sureties are immediately dis- charged, because the obligation no longer exists. But as payment is the act of two parties, the party tendering the debt and the party receiving it, the money or thing due must be accepted. 7 Pick 88; 4 Pick. 83; 8 Pick. 122. See Payment.

12. – 2. As the release of the principal discharges the obligation, the surety is also discharged by it.

13. – 3. A lawful tender made by the principal or his authorized agent, to the creditor or his authorized agent, will discharge the surety. See. 2 Blackf. 87; 1 Rawle, 408; 2 Fairf. 475; 13 Pet. 136.

14. – 4. When the creditor and principal make a compromise by which the principal is discharged, the surety is also discharged. 11 Ves. 420; 3 Bro. C. C. 1; Addis. on Contr. 443.

15. – 5. Accord and satisfaction between the principal and the creditor will discharge the surety, as by that the whole obligation becomes extinct. See Accord and satisfaction.

16. – 6. It is evident that a simple novation, or the making a new contract and annulling the old, must, by the destruction of the obligation, discharge the surety.

17. – 7. An absolute delegation, where the principal procures another person to assume the payment upon condition that he shall be discharged, will have the effect to discharge the surety. See Delegation.

18. – 8. When the principal has a just set-off to the whole claim of the creditor, the surety is discharged.

19. – 9. If the principal and creditor change the nature of the contract, so that it is no longer the same, the surety will be discharged; and even extending the time of payment, without the consent of the surety, when the agreement to give time is founded upon a valuable consideration, is such an alteration of the contract as discharges the surety. See Giving Time.

20. – §3. The contract is discharged by the acts of the creditor and surety, 1. By payment made by the surety. 2. By release of the surety by the creditor. 3. By compromise between them. 4. By accord and satisfaction. 5. By set off.

21. – §4. Fraud by the creditor in relation to the obligation of the surety, or by the debtor with the knowledge or assent of the creditor, will discharge the liability of the surety. 3 B. & C. 605; S. C. 6 Dowl. & Ry. 505; 6 Bing. N. C. 142.

22. – §5. The contract of suretyship is discharged by operation of law, 1. By confusion. – 2. prescription, or the act of limitations. 3. By bankruptcy.

23. – 1. The contract of suretyship is discharged by confusion or merger of rights; as, where the obligee marries the obligor. Burge on Sur. 256; 2 Ves. p. 264; 1 Salk. 306; Cro. Car. 551.

24. – 2. The act of limitations or prescription is a perfect bar to a recovery against a surety, after a sufficient lapse of time, when the creditor was sui juris and of a capacity to sue.

25. – 3. The discharge of the surety under the bankrupt laws, will put an end to his liability, unless otherwise provided for in the law.

26. The surety has the right to pay and discharge the obligation the moment the principal is in default, and have immediate recourse to his principal. He need not wait for the commencement of an action, or the issue of legal process, but he cannot accelerate the liability of the principal, and if he pays money voluntarily before the time of payment arrives, he will have no cause of action until such time, or if he pays after the principal obligation has been discharged, when he was under no obligation to pay, he has no ground of action,.

27. Co-sureties are in general bound in solido to pay the debt, when the principal fails, and if one be compelled to pay the whole, he may demand contribution from the rest, and recover from them their several proportions of their common liability in an action for money paid by him to their use. 6 Ves. 807; 12 M. & W. 421 8 M. & W. 589; 4 Scott, N. S. 429. See, generally, 15 East, R. 617; Yelv. 47 n.; 20 Vin. Ab. 101; 1 Supp. to Ves. jr. 220, 498, 9; Ayliffe’s Pand. 559; Poth. Obl. part 2, c. 6; 1 Bell’s Com. 350, 5th ed.; Git-ing time; Principal; Surety.