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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 prommissor would be liable in the first instance; 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 responsible 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 creditor and principal alone are parties. 3d. By the acts of the creditor and sureties. 4th. By fraud. 5th. By operation of law.
9.-Sec. 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 held 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.-Sec. 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 discharged, 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.-Sec. 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.-Sec. 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.-Sec. 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.; Giting time; Principal; Surety.