SURETY. A surety is one who un dertakes to be answerable for the acts or omissions of another, who is called his principal. Such undertaking must be in writing, and it may be either by bond or by simple writing. A contract is not binding unless made upon some sufficient consideration ; but in the case of a bond this consideration is inferred from the circumstances of deliberation incident to its execution as a deed. When the un dertaking is not by bond, it is necessary that the consideration should appear upon the face of the written instrument, or be necessarily implied from the terms of it, and that the instrument should be signed by the party who becomes the surety. The instrument by which the surety be comes bound, when it has reference to civil matters, is generally called a gua rantee, and ordinarily consists of an un dertaking to become answerable for the payment of goods furnished to the prin cipal, or for his integrity, skill, attention, and other like matters. In such cases the consideration expressed would proba bly be the furnishing of the goods to the principal, or his employment by the party guaranteed. In the construction of guarantees the same rule of law pre vails as in the case of all written instru ments,—that they shall be understood in the sense most favourable to the party making them which the words will rea sonably bear.
With respect to the rights of the surety against the principal, Mr. Justice Buller has distinctly laid down the law, " wherever a person gives a security by way of indemnity for another, and pays the money, the law raises an assumpsit," that is, implies a promise on the part of the principal to repay to the surety all the money that he has expended on his behalf, and this money may be recovered in an action against the principal for money paid to his use. But in no case is
the surety entitled to more than an in demnity from his principal. The court of chancery will interfere to give the surety relief out of any funds of the prin cipal which he cannot reach at common law.
Where more persons than one become sureties for the same principal, they are called co-sureties. If one of these has paid the whole of the debt due from the principal, he may recover in an action of assumpsit from his co-sureties the amounts for which they were respectively liable. A court of equity will also interfere to regulate the proportions partly due from each. And in ease any of them are un able to pay from insolvency, &c., it will compel the others to contribute propor tionally the amount for which the de faulters were liable. The law is the same as to co-sureties, whether all have been created by the same instrument hi writing, or each one by a distinct instru ment.
(Fell, On Guarantees • Mayhew v. Crickett, 2 Swanton, 185.)