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Suretyship

surety, contract, debtor, creditor, act, obligation and white

SURETYSHIP, a word derived from the French surety, from the Latin sectaitas, which means freedom from care. It signifies the obli gation of a person to answer for the debt, de fault or non-performance of another, and to make good any loss occasioned thereby to the extent provided in the contract. The differ ence between suretyship and guarantee is an essential one, a contract of suretyship being a direct liability to the creditor for the act to be performed by the debtor, whereas a guarantee is liability only for the debtor's ability to per form this act. A contract of suretyship is an immediate and direct undertaking that the act shall be done, and if the act is not done, the surety becomes responsible at once.

The Constitution of the United States makes it impossible for any State to enforce a law which might be construed as impairing the rights of a creditor under a contract of suretyship, but like other contracts it may be vitiated and annulled through fraud or duress in the execution. The surety is entitled to such information both from creditor and debtor as will enable him to know the nature of the obli. gation which he is assuming, and if there is fraudulent misrepresentation or suppression of the facts with the purpose of obtaining his agreement to the undertaking the surety can obtain relief in a court of equity. On the other hand this relief would not be granted against innocent parties who had, without notice from the surety, incurred expenditure or assumed obligations on account of the existence of the suretyship contract. Of course in such a case the surety would have a right to redress from the creditor or debtor, or both, who had caused him loss by deceiving him.

It should be understood that there is no obligation on the part of the creditor or of the debtor to disclose all facts relating to the risk, but only those the withholding of which, if lmown to them, or either of them, would con stitute intent to mislead. The surety, on the other hand, is expected to use reasonable judg ment and precaution in making the contract. The presumption of law is that the suretyship, the surety's signature being admitted, is valid, and upon him rests the onus of attacking its validity, if he so desires.

The surety's responsibility cannot be changed or the contract modified in any manner with out his consent, and should any change be made in the contract without such consent, the surety is discharged from his obligation. It

does not matter whether the change would be advantageous to the surety or otherwise; he has a right to stann upon the original terms, and cannot be held responsible for any different terms. This applies also to any extension of the term of credit specified in the contract without the surety's approval in legal form.

Upon discharge of his obligation by the debtor, the surety is of course released. The surety is likewise released by tender of pay ment by the debtor and refusal to receive it by the creditor. In some States the surety is released if the creditor does not sue the prin cipal upon request of the surety. Should the debtor default and the surety have to pay, the surety becomes entitled to all the rights and securities previously held by the creditor against the debtor. If there are several sure ties, and the creditor's claim is enforced against one only, the latter can compel his cosureties to pay their several shares, and he also has a claim against the principal for the amount which he has expended in meeting the obliga tion. See GUARANTEE.

a (Aphriza vir gata), having a distinct place of its own be tween the sandpipers and plovers. It is about 10 inches long, with the wing seven; dark brown above, lighter on the wing coverts, with white spots and stripes on the head and neck; upper tail coverts and basal half of tail white, the latter terminated with brownish black; un der parts white, tinged with ashy in front, each feather having a brownish black crescent. The bill is about as long as the head, with vaulted obtuse tip and compressed sides; wings long and pointed. It is found on the Pacific Coast of North and South America, and in the Sand wich Islands, migrating from northern to tem perate regions in winter and back again in summer. It is usually seen on the edge of steep rocks, among the retreating waves, search 'Mg for small mollusks and marine animals, allowing the surf sometimes to dash over it, whence the common name; its flight is short, with a quick and jerking motion.