Surety

One who has become answerable for payment or performance of an obligation by another; one who has engaged that a debtor shall pay; a third person, who incurs an obligation to a creditor that he shall be paid by the principal debtor; one who undertakes for the act or debt of another. Suretyship: the relation in which one who has engaged to be answerable for another's debtor duty stands, as towards the creditor and the primary debtor; an undertaking to be answerable for another. A surety is defined as a person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person who ought himself to have made payment or performed before the surety was compelled to do so.

Smith v. Shelden, 35 Mich. 42.

Suretyship denotes the relation in which one person who is not primarily indebted stands towards two other persons; viz., the primary creditor whom he further assures in his debt, and the primary debtor whom he assists in obtaining credit. The relation is contractual in these respects, viz., the surety agrees with the creditor to pay liim, failing the debtor; and the debtor agrees to repay the surety the amount which he may have paid on his account to the creditor. Brown. Tiie contract of suretyship has been defined to be a contract whereby one person engages to be answerable for the debt, default, or miscarriage of another. It is an obligation accessorial to that of the principal debtor; the debt is due from the principal, and the surety is merely a guarantor for its payment. Hence it is of the essence of the contract that there should be a valid obligation of the principal debtor; also, that the surety may, in general, avail himself of any defence which his principal could make, while a defence which the principal has precluded himself from making, or has waived, cannot be made by the surety. Evans v. Keeland, 9 Ala. 42. tion if the debtor does not ( Cip. Code, art. 3004). The obligation of the surety is to pay the creditor in case the debtor himself does not satisfy the debt; and the property of the debtor must first be discussed or seised, unless the surety has renounced the plea of discussion, or has become bound in solido with ttie debtor. Judicial sureties are an exception to these rules; the judicial surety cannot exercise the privilege of discussion, but is bound absolutely.

Alley V. Hawthorn, 1 La. Ann. 122.

Surety of the peace, or for good behavior. By the Saxon constitution, sureties for good behavior were always at hand by means of King Alfred's wise institution of decennaries or frank pledges, wherein the whole neighborhood of tithing or freemen were mutually pledges for each other's good behavior. But this great and general security being now fallen into disuse, and neglected, there has succeeded to it the method of making suspected persons find particular and special security for their future conduct. This security consists in being bound, with one or more sureties, in a recognizance or obligation to the king, entered on record, and taken in some court, or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the crown in the sum required, with condition to be void and of none effect if the party shall appear in the court on such a day, and in the mean time shall keep the peace; either generally towards the king, and all his liege people; particularly, also, with regard to the person who craves the security. Or, if it be for the good behavior, then on condition that lie shall demean and behave himself well (or be of good behavior), either generally or specially, for the time therein limited, as for one or more years, or for life. Jacob. Surety of the peace is a species of preventive justice, and consists in obliging those persons whom there is a probable ground to suspect of future misbehavior, to stipulate with, and to give full assurance to, the public that such offence as is apprehended shall not take place, by finding pledges or securities for keeping the peace, or for their good behavior. Brown. Surety of the peace is an acknowledgment of a bond to the crown, taken by a competent judge of record, for the keeping of the peace. Any justice of the peace may bind all those to keep the peace who, in his presence, make affray, or contend together with hot and angry woids, or go about with unusual weapons, to the terror of the people. So, if a private man hath just cause to fear that another will burn his house, or do him a corporal injury, or will procure others to do so, he may demand surety of the peace against such person; and every justice of the peace is bound to grant it, if he who demands it person; and will also further swear that he does not require such surety out of malice or for mere vexation. This is called swearing the peace against another. ( Cowel; 4 BL Com. 255; 4 Steph. Com. 293- 205.) Modey^ W.