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punish the keeping of such houses, and authorizes the adoption of summary measures for the removal or suppression, or the regulation and inspection, of all such establishments, the words "suppress, restrain, and regulate" should not be construed as giving power to license such houses. Ex parte Garza, 13 S. W. 779, 28 Tex. App. 381, 19 Am. St. Rep. 845.

Power to punish implied.

The power to suppress or restrain did not authorize the city to punish a keeper of a disorderly house. City of Chariton v. Barber, 6 N. W. 528, 54 Iowa, 360, 37 Am. Rep. 209 (cited in City of Centerville v. Miller,

10 N. W. 293, 294, 57 Iowa, 56).

absence of a federal question, are beyond the pale of correction by any human tribunal, as the title of this court indicates, being the 'Supreme Court of Appeals.'" Koonce v. Doolittle, 37 S. E. 644, 645, 48 W. Va. 592.

"The name 'Supreme Court' indicates that it is a court of the highest authority in the state, and so it is in this state. Yet in New York this name is given to courts possessing similar jurisdiction to that given to the district courts in this state, and the name

Court of Appeals' is given to the highest court. In Texas the name 'Court of Appeals' diction in criminal cases, and the name ‘Suis given to a court having appellate jurispreme Court' applies to the court having ap

pellate jurisdiction in civil cases." State v. Atherton, 10 Pac. 901, 906, 19 Nev. 332.

St. 1885, conferring on the city of Denver power by ordinance to "prohibit and suppress" disorderly houses, means that the that "the Supreme Court shall consist of Under the provisions of the Constitution city is given the right to provide a punish-three judges, a majority of whom shall be ment to be inflicted on those maintaining such houses. Rogers v. People, 12 Pac. 843, 845, 9 Colo. 450, 59 Am. Rep. 146.

SUPPRESSION.

Where there is an obligation to speak, a failure to speak will constitute the "suppression of a fact"; but, where there is no obligation to speak, silence cannot be termed "suppression." Chicora Fertilizer Co. v. Dunan, 46 Atl. 347, 351, 91 Md. 144, 50 L. R. A. 401.

The "suppression of a deposition" de stroys it for all evidential purposes, and while the paper upon which it was written may remain in the files of the court, and purport on its face to bear the signature of the party to the case, so that what is set down therein would be competent, as admissions and the like against the party, upon proof of the signature or of his assent to the statements contained in the paper, in and of itself, having lost by the suppression the verification which it had as a deposition, it is no more than any other paper, casually and accidentally in the file, purporting to have been signed by a party sought to be charged by the admissions embraced in it, and not evidence against him, unless preliminary proof connecting him with it is adduced. Gross v. Coffey, 20 South. 428, 430, 111 Ala.

468.

SUPREME COURT.

See "Next Supreme Court."

The "supreme court" is a court for the correction of errors at law. State v. Bailey, 1 S. C. 1, 5.

The word "supreme," as applied to a court, means "highest," in the sense of final or last resort. "The errors of this court, in

necessary to form a quorum and pronounce a decision," if the office of one of the judges becomes vacant, the other two may act. Snider v. Rinehart, 31 Pac. 716, 718, 18 Colo. 18.

SUPREME LAW.

The "supreme law" is the Constitution of the United States and the state. Jones v. McMahan, 30 Tex. 719, 735.

"Supreme law of the land," as used in Const. art. 1, § 2, providing that the Constitution of the United States is the "supreme law of the land," relates to those matters wherein the general government assumes to control the individual states; and, the requirement of a presentment by a grand jury not being one of them, the further provision of the state Constitution relating to prosecutions by information, and dispensing with grand juries, is not affected by section 2. In re Rafferty, 25 Pac. 465, 466, 1 Wash. St. 382.

SUPREME LODGE.

The words "grand or supreme lodge," when used "in their ordinary and popular sense, apply only to secret organizations or supreme bodies constituted from and having jurisdiction over secret societies." The term is so used in Laws 1885, c. 131, § 30, in reference to insurance, which provides that the act shall not apply to any association of religious or secret societies now existing or under the supervision of a grand or supreme lodge. State v. National Ass'n of the Farmers' & Mechanics' Mut. Aid Ass'n, 9 Pac. 956, 960, 35 Kan. 51.

SUPT.

Judicial notice will be taken that the term "Supt." stands for the word "superin

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tendent,” and, as the superintendent is a loss or damage; security for payment; in managing agent in a replevin suit, an affidavit | law, one who enters into a bond or recogni

in replevin signed by a certain person as Supt. is a sufficient compliance with Rev. St. 1879, § 2882, providing that the statement shall be verified by the affidavit of the plaintiff, his agent, or attorney. South. Missouri Land Co. v. Jeffries, 40 Mo. App. 360, 361.

SURCHARGE.

"Surcharge" is the term applied in an action of account to the entering on the account of any debit or credit which ought to have been made and which has been omitted. | Philips v. Belden (N. Y.) 2 Edw. Ch. 1, 23.

An account stated is not absolutely conclusive; but if any of the parties can show an omission for which credit ought to be,

that is a “surcharge," or if anything is in serted that is a wrong charge he is at liberty

to show it, and that is a "falsification." Re

hill v. McTague, 7 Atl. 224, 228, 114 Pa. 82, 60 Am. Rep. 367 (citing Pit v. Cholmondeley, 2 Ves. Sr. 565).

Surcharging applies to the balance of the whole account, and supplies credits omitted which ought to be allowed. Leave to surcharge and falsify an account does not authorize a restatement of it on different principles. The principles of an accounting are all settled, but all items of overcharge or mischarge and of failure to credit may be corrected. Such correction would carry with

each item a change of its incidents, such as commissions and interest, and necessarily requires a restatement on the principles already established. Kennedy v. Adickes, 15

8. E. 922, 923, 37 S. C. 174.

SURETIES.

"Sureties," as used in Code, § 1853, relating to judicial proceedings, and requiring a bond therein, with sureties, though plural in form, should be construed to include the singular number also, in the same way that a word importing a singular number may be extended to mean several persons or things. Elliott v. Stevens, 10 Iowa, 418, 422.

SURETY.

zance to answer for another's appearance in court, or for his payment of a debt, or for the performance of some act. Pitkins v. Boyd (Iowa) 4 G. Greene, 255, 259.

A surety is defined as a person who, being liable to pay a debt, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have made payment before the surety was compelled to do so. Johnson v. Young, 20 W. Va. 614, 657. A surety is 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 to have performed before the surety is compelled to do so. Smith v. Shelden, 35 Mich.

42, 24 Am. Rep. 529 (quoted with approval in bree, 117 Ala. 301, 23 South. 38, 39); Wise v. Chattanooga Foundry & Pipe Works v. HemMiller, 45 Ohio, 388, 399, 14 N. E. 218; CasWentlandt v. Sohre, 33 N. W. 700, 701, 37 san v. Maxwell, 39 Minn. 391, 40 N. W. 358; Minn. 162; Hoffman v. Habighorst, 63 Pac. 610, 612, 38 Or. 261, 53 L. R. A. 908.

A surety is one who, at the request of him a benefit, becomes responsible for the another and for the purpose of securing to performance by the latter of some act in favor of a third person or hypothecates prop1903, § 2831; Civ. Code Mont. 1895, § 3670; erty as security therefor. Civ. Code Cal. Rev. Codes N. D. 1899, § 4649; Civ. Code S. thur R. Briggs Co., 72 Pac. 352, 353, 138 Cal. D. 1903, § 1993; Sather Banking Co. v. Ar724; O'Connor v. Morse, 44 Pac. 305, 306, 112 Cal. 31, 53 Am. St. Rep. 155; Valentine v. Donohoe-Kelly Banking Co., 65 Pac. 381, 382, 133 Cal. 191; London, Paris & American Bank v. Smith, 35 Pac. 1027, 1028, 101 Cal. 415.

A surety or guarantor is one who becomes responsible for the debt, default, or miscarriage of another person. The words "surety" and "guarantor" are often used indiscriminately as synonymous terms; but, while a surety and guarantor have in common that they are both bound for another person, yet there are points of difference between them which should be carefully noted. A surety is usually bound with his principal in the same instrument, executed at the same time,

See "Common Surety"; "Sufficient Sure- and on the same consideration. He is an ties."

▲ surety is 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. Young v. McFadden, 25 N. E. 284, 125 Ind. 254.

The word "surety" is defined by Webster to mean certainty; safety; security against

original promisor and debtor from the be

ginning, and is held ordinarily to know will not be protected, either by the mere every default of his principal. Usually he indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby. On the other hand, the contract of the guarantor is his own separate undertaking, in which the principal

does not join. It is usually entered into be- | ligated to answer for the default of another. fore or after that of the principal, and is Waitress v. Pierce, 32 N. H. 560; Magill often founded on a separate consideration v. Brown, 50 S. W. 642, 20 Tex. Civ. App. from that supporting the contract of the 662. principal. The original contract of the principal is not his contract, and he is not bound to take notice of its nonperformance. Hall v. Weaver (U. S.) 34 Fed. 104, 106.

A surety, says Chancellor Wythe, "is one bound that something shall be done, not by himself in the first instance, but by some other hand, and, in case of default by this prior agent, that the obligor shall perform the act or compensate for nonperformance." | Field v. Harrison (Va.) Wythe, 273, 281. To make one a surety, he must be bound by contract or engagement entered into at the request of another, who is the real debtor. Sherman's Adm'r v. Shaver, 75 Va. 1, 4.

The contract or undertaking of a surety is a contract by one person to be answerable for the payment of some debt or the performance of some act or duty, in case of the failure of another person who is himself primarily responsible for the payment of such debt or the performance of the act or duty. Roberts v. Hawkins, 38 N. W. 575, 578, 70 Mich. 566.

A surety is one who contracts to answer for a debt, default, or miscarriage of another an obligation accessorial to that of the principal debtor; but the relation of surety does not exist where the consideration moves directly to or from the person claiming the privilege of a surety. Mobile & O. R. Co. v. Nicholas, 12 South. 723, 735, 98 Ala. 92.

The word "surety" generally means a co-obligor or co-promisor entering into a contract with the principal jointly, or jointly and severally, and at the same time. Read v. Cutts, 7 Me. (7 Greenl.) 186, 189, 22 Am. Dec. 184.

In Gen. St. c. 66, § 36, allowing parties severally liable upon the same obligation or instrument, and sureties on the same instrument, to be included in the same action, a "surety," within the meaning of the statute, is any one who is bound on the same instrument for its payment with another, who, as between themselves, is the principal debtor, whatever may be the particular

form of the undertaking. Hammel v. Beardsley, 17 N. W. 858, 859, 31 Minn. 314.

A surety has always the right to pay the debt of the principal, and when he does so he becomes entitled to be subrogated to the rights of the creditor and to receive the benefit of any surety which the creditor may hold against him. Willis v. Davis, 3 Minn. 17, 27 (Gil. 1, 5).

The term "surety" in its broadest sense includes every person whose estate is ob

"Sureties," as used in Comp. Laws 1876, P. 403, § 1240, providing that persons severally liable upon some obligation or instrument, including the parties to bills of exchange and promissory notes and sureties on the same or separate instruments, may all or any of them be included in the same action at the option of plaintiffs, includes guarantors. "Surety" is a general term, and "guaranty" is a special. In a statute where there is nothing to limit it, "surety" is taken to include "guaranty." Gagan v. Stevens, 9 Pac. 706, 707, 4 Utah, 348.

Sureties are not bound beyond the strict terms of engagement, and their liability is not to be extended by implication beyond the terms of their contract. A city council elected a superintendent of waterworks,

while there was no law or ordinance specifying his duties or requiring him to give any bond. He gave the bond, with sureties, conditioned for the proper discharge of his duties of superintendent and the payment of moneys that might come to his hands as such. Subsequently an ordinance was passed providing for the appointment of such superintendent and defining his duties, one of which was the collection of water rents. He collected the rents and became a defaulter to a large amount thereof. The sureties were not liable for the defalcation; the additional and different duty of collecting water rents imposed being an additional peril to the sureties beyond their engagement. City of Lafayette v. James, 92 Ind. 240, 243, 47 Am. Rep. 140.

A surety has all the rights of a guarantor, may compel the principal to perform the obligation when due, may satisfy the principal obligation, with or without legal reimburse him, with costs and expenses." proceedings, "and compel the principal to is entitled to all the security held by the creditor, is entitled to enforce all the remedies which the creditor has against the principal, and may require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety cannot himself pursue, and which would

lighten his burden. Civ. Code, § 1681; Ken

nedy v. Falde, 29 N. W. 667, 670, 4 Dak. 319.

A surety has the right to stand on the very terms of his contract, and, where his undertaking is that his principal shall perform the conditions of a contract regarding the sale on commission of implements to be furnished him in the future, the surety is not liable for default of the principal respecting implements already on hand, which the principal and the owner, without the

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knowledge of the surety, had afterwards of the words "security for the fulfillment of agreed should be soid as though furnished the above," which are not inconsistent with

under the contract of suretyship. Weir Plow Co. v. Walmsley, 110 Ind. 242, 246, 11 N. E.

232.

Sureties on the bond on appeal from the judgment of a justice of the peace for possession of real estate and damages for its detention are not liable beyond the penalty, notwithstanding Rev. St. 1881, § 5236, providing that in such cases damages on appeal by defendant shall be deemed as covered by the appeal bond, and section 1221, providing that where official bonds, recognizances, etc., are defective, the principal and sureties shall be bound to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond. Graeter v. De Wolf, 112 Ind. 1, 2, 13 N. E. 111.

On appearance bond.

A surety on an appearance bond is something more than a simple obligor; for the principal is supposed to be in the surety's constant custody, and the former, being the latter's jailer, may at any time surrender him to the custody of the law. State v. Toups, 11 South. 524, 527, 44 La. Ann. 896.

On note.

A surety on a note is an original maker, and becomes pri.aarily liable to any person lawfully holding the paper; and it is held that the mere addition of the word "surety," written after the name of a person signing the note as a surety, is not sufficient to restrict his liability to that of an indorser. Ballard v. Burton, 24 Atl. 769, 772, 64 Vt. 387, 16 L. R. A. 664.

Where a person makes a promissory note in the singular number, and another signs the same, adding the word "surety," after the name, both are liable, and may be sued together as makers. Such a note is joint and several, and both parties are principals. Dart v. Sherwood, 7 Wis. 523, 76 Am. Dec. 228.

The word "surety," affixed to the name of the maker of a promissory note, does not show that he stands in such a relation to the transaction in which it was given that he may not be made liable to a recovery on a common count for money had and received, or for money lent, or for money paid out. Vaughn v. Rugg, 52 Vt. 235, 237.

In a note signed by P., under which is the signature of C., with the words "security for the fulfillment of the above," C. was not a "guarantor," but an immediate party. His name was signed at the foot, beneath that of P., the principal debtor, but, to exclude misconception of his character in the transaction, with the marginal annexation 8 WDS.& P.-2

the direct engagement. They serve to note that he had signed, not as a “guarantor," but as a "surety." They are not technical words in a contract of guaranty, and the juxtaposition of the signatures, as well as the absence of apt words to indicate a contingent responsibility, shows that the parties intended to be jointly bound. Craddock v. Armor (Pa.) 10 Watts, 258.

Where the surety on a promissory note pays it after the principal has been discharged under the insolvency act, the surety may recover the amount from the principal, whose discharge will be no bar to the action. Paxson v. Haster, 11 N. J. Law (6 Halst.) 410.

Though a person added the word "surety" to his name when signing a note, it is quite possible that he was in truth a principal debtor; and though a jury, in the absence of proof to the contrary, might infer from the tenor of the note that he was a surety, still it would be a presumption of fact to be made by the jury, and not a presumption of law to be declared by the court. Sisson v. Barrett, 2 N. Y. (2 Comst.) 406, 407.

One may become a party to a promissory note or a bill of exchange as a surety, and is entitled to all the privileges applicable to that character as fully as though he was a surety in some other form of contract. Griffith v. Reed (N. Y.) 21 Wend. 502, 503, 34 Am. Dec. 267.

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though the name of the principal does not appear in the instrument which constitutes the evidence of the debt." Hoffman v. Habighorst, 63 Pac. 610, 612, 38 Or. 261, 53 L. R. A. 908 (quoting Lead. Cas. Eq. [4th Ed.] 149).

A contract of a wife in executing a new note, after the married women's act of 1881 went into effect, in renewal of a note exeuted by the husband and wife for money ioaned to the wife and used by the husband before the passage of such act, was a contract of suretyship. Lackey v. Boruff, 53 N. E. 412, 414, 152 Ind. 371.

Rev. St. 5119, prohibiting married women to enter into any "contract of surety," etc., does not apply to a note executed by a wife in payment of a transcript of a judg ment against her husband, necessary to appeal the case. Morningstar v. Hardwick, 29 N. E. 929, 930, 3 Ind. App. 431.

A warranty in a wife's conveyance of her separate realty in discharge of her husband's debt is not a contract of suretyship, within Burns' Rev. St. 1894, § 6964 (Rev. St. 1881, § 5119), avoiding her contracts of suretyship; the transaction having extinguished the debt. Nichol v. Hays, 50 N. E. 768, 769, 20 Ind. App. 369.

The term "suretyship," rather than that of "guaranty," applies to the promise in which the promisor binds himself to do that which another is bound to do, if the latter does not do it himself, as it is an original undertaking. Woody v. Haworth, 57 N. E. 272, 273, 24 Ind. App. 634.

An instrument of writing reciting: "We hereby guaranty that the town of Homer will furnish a free right of way to the La. & N. W. R. R. Co."-is in terms and in legal effect an ordinary contract of commercial guaranty, and not of suretyship, and the parties signing the same bind themselves jointly. Louisiana & W. R. Co. v. Dillard, 26 South. 451, 453, 51 La. Ann. 1484.

"Whenever a contract is shown which upon the face of it shows defendant to be a surety, certain principles immediately apply, one of which imposes on the creditor the duty of showing that nothing has been done on his part tending to exonerate the principal and burden the security." Williams v. Collins, 4 N. C. 382, 388.

A contract of guaranty or suretyship is said to be strictissimi juris, and one in which the guarantor has the right of prescribing the exact terms upon which he will enter into the obligation and to insist on his discharge if those terms are not observed. It is not a question whether he is harmed by a deviation to which he has not assented. Schoonover v. Osborne, 79 N. W. 263, 264, 108 Iowa, 453.

A note executed by a wife in payment of a transcript of a judgment against her husband, necessary to appeal the case, is not a contract of surety, within Rev. St. § 5119, prohibiting married women to enter into any such contract. Morningstar v. Hardwick, 29 N. E. 929, 930, 3 Ind. App. 431.

Payment by a surety, though it may discharge the debt and extinguish liens held by the creditor, does not have that effect as between the principal debtor and his surety. As between them, payment by the latter is in the nature of a purchase from the creditor, and operates as an equitable assignment of the debt. Thomas v. Stewart, 117 Ind. 50, 51, 18 N. E. 505, 506, 1 L. R. A. 715.

Where a husband receives the entire consideration for a sale of a certain business, and his wife joins in a covenant that neither would engage in it again for a certain time, she was a principal therein and was personally bound thereby. Koh-i-moor Laundry Co. v. Lockwood, 141 Ind. 140, 143, 40 N. E. 677.

"Suretyship" is an accessorial promise, by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation if the debtor does not. Civ. Code La. 1900, art. 3035.

Guaranty distinguished. See "Guaranty."

As requiring strict construction.

The contract of a surety is to be construed strictly, both in law and equity, and his liability is not to be extended by any implication beyond the terms of his contract. Reynolds v. Hall, 2 Ill. (1 Scam.) 35, 38.

A contract of suretyship is one whereby one obligates himself to pay the debt of another. The liability of a surety is said to be strictissimi juris; that is, the obligation of a surety must not be extended to another subject, or to any other person or period of time than is expressed or necessarily included in it. The contract, however, is subject to common-sense rules of interpretation, such as govern any commercial instrument. No surety is to be bound beyond the extent of the engagement, which shall appear, from the expression of the security and the nature of the transaction, to have been in his contemplation at the time of entering into it. The intent or latitude of the contract of suretyship is to be ascertained by fair and liberal construction of the instrument, in furtherance of the intention of the parties, and the liability of the surety can in no way be extended by implication. In short, the strict construction of the obligation of a surety applies to its nonextension to sub

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