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SURETYSHIP

6813

SURFACE LINE

Jects, persons, or periods of time not neces- / operated as a discharge of the principal and sarily or expressly included in it; otherwise, sureties on the second bond. State v. ParIt is subject to the ordinary rules of con- ker, 72 Ala. 181, 183. struction. Fisse v. Einstein, 5 Mo. App. 78, 87.

Rev. Civ. Code, art. 3035, defines "sure

tyship" to be “an accessory promise by As requiring a primary obligation.

which a person binds himself for another al

ready bound, and agrees with the creditor A contract of suretysbip is collateral to to satisfy the obligation if the debtor does and predicated upon a primary obligation. not.” Lachman v. Block (La.) 15 South. 649, In order to establish suretyship, it is first 650. necessary to prove the existence of the primary contract. Thornburg v. Allman, 35 N.

The obligation of a surety is an obligaE. 1110, 8 Ind. App. 531.

tion accessory to that of a principal debtor.

It is said the essential of this obligation is "A contract of suretyship is accessory that it should be a valid obligation of such to an obligation contracted by another per- principal. Bernd v. Lynes, 43 Atl. 189, 71 son, either contemporaneously, or previously, Conn. 733. or subsequently," to answer on the default of the principal. “It is the essence of the contract that there be a subsisting, valid ob- SURFACE. ligation of a principal debt. Without a principal there can be no accessory, and by the “Surface" means that part of the land extinction of the former the latter becomes which is capable of being used for agricul. extinct." Russell v. Failor, 1 Ohio St. 327, tural purposes. Murray v. Allred, 43 S. W. 329, 59 Am. Dec. 631.

355, 358, 100 Tenn. 100, 39 L. R. A, 249, 66

Am. St. Rep. 740 (citing Railway Co. v. According to the civil law a party who Checkley, L. R. 4 Eq. 19; Hext v Gill, 7 entere voluntarily into an agreement is Ch. App. 699; Attorney General v. Timline, bound by his stipulation, and he who accepts 5 Ch. Div. 762). the guaranty looks to it for the ultimate fulfillment of the original undertaking. AC The word "surface," when specifically cording to Code La. art. 3004, suretyship is used as a subject of conveyance, has a defian accessory promise by which a person nite and certain meaning, and means that binds himself for another already bound, and part of the land which is or may be used for agrees with the creditor to satisfy the obli- agricultural purposes. The very fact of congation, if the debtor does not. Pothier says veying the surface carries with it the idea a suretyship is a contract by which a person of an express grant alone of the surface, and obligates himself on behalf of a debtor to a severs it from every other material composcreditor for the payment of a whole or a ing the land. Williams v. South Penn Oil part of what is due from such debtor, by Co., 43 S. E. 214, 215, 52 W. Va. 181 (citing way of accession to his obligation. Ringgold Knight v. Iron Co., 47 Ind. 105, 17 Am. Rep. v. Newkirk, 3 Ark. (3 Pike) 96, 108.

692). A “suretyship" is a mere accessory

"Surface," as used in a grant of minpromise by which a person binds himself for erals, wherein it was provided that the another already bound. An individual mem- grantee should take his right under the sery. ber of a copartnership cannot, therefore, be-itude that he would support the surface come surety on an attachment bond execut- above his mine, meant all strata superincumed by his firm as principal; for he cannot be bent upon the mineral strata granted, and both principal and surety at one and the not merely the geometrical surface. Yandes same time, in the same obligation, and for v. Weight, 66 Ind. 319, 325, 32 Am. Rep. 109. the same liability. Bayne v. Cusimano, 23

“Surface,” as used in Municipal Code, 8 South. 361, 363, 50 La. Ann. 361.

494 (66 Ohio Laws, p. 232), providing that A contract of suretyship is usually de- the owner or possessor of a city or village fined to be a contract whereby one person lot shall be liable for damage occasioned to engages to be answerable for the debt, de- buildings on any adjoining lots by excavafault, or miscarriage of another. It is an tion which he makes on his own lot to the obligation accessorial to that of the principal depth of more than nine feet below the curb debtor. Therefore, if the principal is dis- of the street, or, if there be no curb, below charged because of matters inherent in the the surface of the adjoining lots, means “an transaction, even after judgment against the actual existing surface, whether it be a nat. surety, the latter will be exonerated thereby. ural surface, or the result of Alling or gradWhere a tax collector executed an addi-ing the lots." Burkhardt v. Hanley, 23. tional bond, on which was one new surety Ohio St. 558, 559. besides the sureties on the first bond, and separate actions were brought and the same SURFACE LINE. breaches assigned for a default covered by each, a judgment on a verdict in an action The "surface line" of a street is as es on the irst bond in favor of the obligors sential a part of the street as its lateral

SURFACE RIGHTS

6814

SURFACE WATERS

lines. Righter V. Oity of Philadelphia, 28 | spongy, springy, or boggy ground. Lawton Atl. 1015, 1016, 161 Pa. 73.

v. South Bound R. Co., 39 S. E. 752, 753, 61

S. C. 548; Neal v. Ohio River R. Co., 34 S. SURFACE RIGHTS.

E. 914, 915, 47 W. Va. 316. "Surface rights,” as used in a contract

The law is well settled in this state that sale of surface rights of land, means the en-water overflowing the banks of a stream

Edtire surface of the land, reserving the min- must be regarded as “surface water." erals to the grantor. Keweena w Ass'n v.

wards v. Missouri, K. & T. R. Oo., 71 S. W. Friedrich, 70 N. W. 896, 897, 112 Mich. 442. 366, 367, 97 Mo. App. 103 (citing Abbott v.

Kansas City, St. J. & C. B. R. Co., 83 Mo.

271, 280, 53 Am. Rep. 581). SURFACE STREAMS.

The superabundant water of a stream, “Surface streams” are streams which which at times of ordinary floods spreads flow in a permanent, distinct, well-defined out and overflows its bank and channel, is channel from the land of one owner to that

deemed "surface water." The flow of a of another. Tampa Waterworks Co. v. Cline, river, when swollen beyond the low-water 20 South. 780, 782, 37 Fla. 586, 33 L. R. A. mark of the dry seasons by the ordinary 376, 53 Am. St. Rep. 262.

rains which fall in wet seasons or by the "Surface streams" are regarded as a melting of snowg, does not constitute surspecies of private property, and their use is face water. Surface water is that which is regulated by rules differing very materially diffused over the ground from falling rains from the rules applied to subterranean or melting snows, and continues to be such streams. Roath v. Driscoll, 20 Conn. 533, until it reaches some bed or channel in which 541, 52 Am. Dec. 352.

water is accustomed to flow. Cairo, V. & C. R. Co. v. Brevoort (U. S.) 62 Fed. 129,

131, 133, 25 L, R. A. 527. SURFACE WATERS.

"Surface water" includes such water as “Surface waters” are those which, how- is carried off by surface drainage; that is, ever originating, are shed and passed from drainage independently of the water course. the lands of one proprietor to those of an: Bunderson v. Burlington & M. R. R. Co., 61 other, without any distinct or well-defined

N. W. 721, 722, 43 Neb. 545 (cited in Moirischannel. Tampa Waterworks Co. v. Cline, 20 South. 780, 782, 37 Fla. 586, 33 L. R. A. sey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56

N. W. 946). 376, 53 Am. St. Rep. 262.

All water courses are made up more or “Surface water” is water on the surface less from surface water, but, after it enters of the ground, the source of which is so into the stream and commences to flow withtemporary or limited as not to be able to in its banks, it is no longer to be considered maintain for any considerable time a stream

"surface water." Surface water is considor body of water having a well-defined and ered a common enemy, that each proprietor substantial existence; and where water

of land may and must fight for himself, with from surrounding lands collects in a basin, a view to protect himself without being rewhich in rainy season holds large quantities of water, and there is no natural outlet, but sponsible to others therefor, provided he does

so in a usual and careful manner. Jones v. the basin sometimes becomes dry by evap- Hannovan, 55 Mo. 462, 467. oration, the water is surface water. Brandenburg v. Zeigler, 39 S. E. 790, 791, 62 S. C. "Surface water" is that which is dit. 18, 55 L. R. A. 414, 89 Am. 'St. Rep. 887 fused over the surface of the ground, de(citing Cairo, V. & C. Ry. Co. v. Brevoort rived from falling rains and melting snows, (U. S.) 62 Fed. 129, 131, 25 L. R. A. 527; and continues to be such until it reaches Lawton v. South Bound R. Co., 39 S. E. 752, some well-defined channel in which it is ac61 S. C. 548).

customed to, and does, flow with other wa"Surface waters” are waters of a casual ters, whether derived from the surface or and vagrant character, which ooze through from the main current, or leaving the stream

springs. A flood water, becoming severed the soil or diffuse or squander themselves over the surface, following no definite course grounds, is “surface water.” Morrissey v.

never to return, and spreading out over low They are waters which, though customarily Chicago, B. & Q. R. Co., 56 N. W. 946, 38 and naturally flowing in a known direction

Neb. 406; Crawford v. Rambo, 7 N. E. 429, and course, have nevertheless no banks or channels in the soil, and include waters 431, 44 Ohio St. 279; O'Connell v. East Tenwhich are diffused over the surface of the 87 Ga. 246, 13 L. R. A. 394, 27 Am. St. Rep.

nessee, V. & G. Ry. Co., 13 S. E. 489, 491, ground, and are derived from rains and

216. melting snows, occasional outbursts of water, which in time of freshet or melting of Overflow from a river in time of high snows descend from the mountains and in- water is "surface water." Jean v. Pennsylondate the country, and the moisture of wet, vania Co., 30 N. E. 159, 9 Ind. App. 56;

SURFACE WATERS

6815

SURGERY

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Sbane v. Kansas City, St. J. & C. B. R. Co., | ets or other extraordinary causes." Blo71 Mo. 237, 247, 36 Am. Rep. 480.

howak v. Grochoski, 96 N. W. 551, 553, 119

Wis. 189.
Some courts hold that flood waters from
a stream are "surface water"; but the lar-
ger number class such water as part of the SURFACED—SURFACING.
stream, and hold that it is not surface water.

The use of the word "surfaced,” in a
In O'Connell v. East Tennessee, V. & G. Ry. contract with a railroad company to lay its
Co., 13 S. E. 489, 87 Ga. 246, 13 L. R. A. tracks and to make the track in good run-
394, 27 Am. St. Rep. 246, the authorities on ning order, well surfaced, high, evenly and
the question as to what constitutes surface firmly embedded, etc., is employed in the
water and as to the rights of parties to di- sense of those engaged in the construction
rert water, whether surface or otherwise, of such roads, and may be explained by ex-
are fully reviewed. The court says: “If the trinsic evidence. Western Union R. Co. V.
food water becomes severed from the main Smith, 75 III. 496, 502.
current, or leaves the stream never to re-
turn, and spreads out over the lower ground, "Surfacing," as used in a contract for
it has become surface water; but if it forms railway construction, seems to be a technical
a continuous body with the water flowing in term among civil engineers, and does not in-
the ordinary channel, or if it departs from clude filling in between the ties nor raising
such channel animo revertendi presently to the roadbed. Snell v. Cottingham, 72 Ill.
return, as by the recession of the waters, it 161, 167.
is still to be regarded as part of the river.”

"Surfacing track," as applied to a railIn Cairo, V. & C. Ry. v. Brevoort (U. S.) 62 road, means illing the dirt and gravel be. Fed. 129, 25 L. R. A. 527, the court says: tween the ties, and dressing up the surface. “Surface water ceases to be such when it Heine v. Chicago & N. W. Ry. Co., 17 N. W. enters a water course in which it is accus- 420, 58 Wis. 525. tomed to fiow; for, having entered the stream, it becomes a part of it and loses its original character. Surface water is that SURGEON. which is diffused over the ground from fall.

See “Police Surgeon"; "Veterinary Suring rains or melting snows, and continues to

geon."
be such until it reaches some bed or channel
in which water is accustomed to tow." Sul-

A dentist is one whose profession is to livan v. Dooley, 73 S. W. 82, 83, 31 Tex. Civ. clean and extract teeth, repair them when App. 589.

diseased, and replace them, when necessary, A lake fed by streams which in times by artificial ones; and a dentist will not be of flood find exit by rapid percolation through held to be a surgeon or physician, within the a bed of gravel, so that there is a sensible statutes relating to privileged communicacurrent toward the gravel bed, is a water tion. People v. De France, 62 N. W. 709, course and not merely surface water. Heb 711, 104 Mich. 563, 28 L. R. A. 139 (citing ron Gravel Road Co. v. Harvey, 90 Ind. 192, State ex rel. Flickinger v. Fisher, 24 S. W. 194, 46 Am. Rep. 199.

167, 119 Mo. 344, 22 L. R. A. 799); City of

Cherokee v. Perkins, 92 N. W. 68, 69, 118 A stream does not cease to be a water Iowa, 405. course, and become merely surface water, because at a certain point it spreads out over a level meadow several rods in width, and SURGERY. flows for a distance without defined banks,

Webster's Dictionary describes "surgbefore flowing again in a definite channel. ery” as a branch of medical science. It canIt is sometimes difficult to distinguish be- not be denied that practical surgery is orditween a water course and mere surface wa- narily thus spoken of. United States v. ter. Much may depend upon the soil and Massachusetts General Hospital, 100 Fed. other surroundings and conditions. It is

932, 938, 41 C. C. A. 114. well known that certain Western streamssome marked as rivers upon the map-have The practice of surgery was said, in quite extended sections which for months Smith v. Lane (N. Y.) 24 Hun, 632, to be limare perfectly dry. In defining a water ited to manual operations usually performed course, Chief Justice Dixon said: “There by surgical instruments or appliances. Nelmust be a stream usually flowing in a par son v. State Board of Health, 57 S. W. 501, ticular direction, though it need not flow 504, 108 Ky. 769, 50 L. R. A. 383. continually. It may sometimes be dry. It must flow in a definite channel, having a and “surgery” is therapy of a distinctly op

“Therapy" is the treatment of disease, bed, sides, or banks, and usually discharge erative kind. itself into some other stream or body of wa- 21, 56 N. W. 256.

Stewart v. Raab, 55 Minn. 20, ter. It must be something more than a mere surface drainage over the entire face of a The term "surgery" is applied to a place tract of land, occasioned by unusual fresh- where medicines for the use of passengers

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were kept by the physician employed on ance people, when applied to life insurance board a passenger ship. Allan v. State S. S. “means a sum of money or assets which has Co., 30 N. E. 482, 484, 132 N. Y. 91, 15 L R. been accumulated over and above all debts A. 166, 28 Am. St. Rep. 556.

and liabilities of any and all kinds whatso ever." Fry V. Provident Sav. Life Assur.

Soc. of New York (Tenn.) 38 S. W. 116, 126. SURNAME.

A provision in an insurance policy enWhere a testator derised lands to M. for titling insured to participate in the distribulife, he taking and using the testator's sur- tion of the “surplus" of the company issuing name of L., instead of his own surname, it, according to such methods as may be with limitations over to his first and other adopted by the company, means the amount sons in strict settlement, they severally tak- of funds in the hands of the company after ing and using the testator's surname, instead deducting its liabilities, as ascertained by of their own, and with limitations over to certain rules adopted by the insurance de other persons, after which the will provided partment for determining the value of each that, when any of the premises should vest risk. Greeff v. Equitable Life Assur. Soc., in any person not bearing the surname of 54 N. E. 712, 715, 160 N. Y. 19, 46 L. R. A. L., that person should take on himself such 288, 73 Am. St. Rep. 659. name and use the same for his own, and should within three years procure his name

War Revenue Act July 13, 1898, C. 448, to be altered to the testator's surname, the $ 2, 30 Stat. 448 (U. S. Comp. St. 1901, p. word “surname” was not used to denote a 2286), provides that bankers and persons and name inherited from the father, and a bear firms engaged in various occupations, eming de facto answered every useful purpose ploying a capital not exceeding $25,000, shall of an actual change, and was sufficient to pay a certain additional sumn for every $1,000 satisfy the general and ordinary meaning of of capital abore $25,000, and in estimating the words “bearing the surname," and there capital surplus should be included. It was fore one who took under the limitation over, held that, as the act did not refer excluwho was bearing the name de facto, did not sively to national banks, the word “surplus," forfeit his right by not having the change as used in the act, would not be restricted, in made by legislative act within the time lim- assessing national banks, to the meaning ited. Luscombe v. Yates, 5 Barn & Ald. given it in previous national bank legislation 544.

as covering only so much of the surplus profits as the board of directors have set

apart for a reserved capital, but includes the SURPLUS.

entire surplus of assets over liabilities.

Leather Mf'rs' Nat. Bank v. Treat (U. S.) See “Accumulated Surplus."

116 Fed. 774, 775. “Surplus" is defined as “overplus; that wbich remains when use is satisfied ;

Capital stock distinguished. cess beyond what is prescribed or wanted in The surplus of a banking corporation is law; the residue of an estate after the debts not the same as its capital stock, but is that and legacies are paid.” People's Fire Ins. portion of the property, over and above the Co. v. Parker, 35 N. J. Law (6 Vroom) 575, capital stock, which is the property of the 577.

bank until it is divided among the stock

holders. Bank of Commerce v. Tennessee, “Surplus,” as used in Ky. St. $ 2132, pro- 16 Sup. ct. 456, 461, 161 U. S. 134, 40 L. Ed. viding that, after the death of either the

645. husband or wife, the survivor shall have an absolute estate in one-half of the surplus

Real estate. personalty left by such decedent, means what is left after payment of funeral ex

Where a testator, after making several penses, charges of administration, and debts. devises, declared that of the “rest, residue, Towery v. McGaw (Ky.) 56 S. W. 727, 728.

and remainder of my estate I give and be

queath” several legacies, and that “if, after "Surplus," as used in a will giving the the payment of all these legacies, there use, etc., of the testator's real estate to his should remain a surplus undisposed of, I do wife for life, and also his personal estate of give and bequeath the same unto my sons." every description absolutely, “having full the word “surplus” should be construed to confidence that she will leave the surplus to include the real estate. Lamb v. Lamb, 30 be divided at her decease justly among his N. E. 133, 131 N. Y. 227. children," means all that shall remain thereafter, and does not give any right of dispo a life estate in the homestead and two lots,

A Pennsylvania testator gave to his wife sition to the widow during her life. Appeal and charged upon his goods and lands an of Coates, 2 Pa. (2 Barr) 129, 137.

annuity to her, but did not mention his lands Expert evidence has been held admissi in any other part of the will, and then, after ble that the word "surplus,” among insur- sundry legacies, bequeathed the surplus to

ex

SURPLUS EARNINGS

6817

SURPLUSAGE

be applied to the purposes of a Presbyterian , water in the west channel was sufficient for church. Held, the word "surplus" did not such mill, and he afterwards conveyed the relate to his lands. Allen's Ex’rs v. Allen, land, with a provision that the grantee might 59 U. S. (18 How.) 385, 391, 15 L. Ed. 396. put a dam across the river and use the sur

plus of water on his side of the river, not to SURPLUS EARNINGS.

the injury of the grantor's gristmill, the

word "surplus" should be construed to mean In 1 Rev. St. p. 415, 8 B, providing that the surplus of water in the east channel moneyed corporations shall be liable to tax- over the amount necessary to run grantor's ation on a valuation equal to the amount mill. Eastman v. Parker, 27 Atl. 611, 612, paid in and their surplus earnings, “surplus 65 Vt. 643. earnings" means an amount owned by the company over and above the capital and ac

Water running from a higher to a lower tual liabilities, and includes one-half of the level of a canal, the use of which in its paspremiums received on unexpired policies of sage has been leased by the state to india fire insurance company. People v. Com- viduals, is not “surplus water,” within the missioners of Taxes and Assessments, 76 n. intention of St. 1833, p. 261, § 1, declaring Y. 64, 68.

that the canal commissioners, after diverting the waters of a stream, must first resume the

use of all surplus water which had been SURPLUS MONEY.

leased on that level. Lynch v. Stone (N. Y.) “Surplus money" realized by sale of 4 Denio, 356, 359. lands owned under a deed of trust is treated as realty, and not personalty, in respect to

SURPLUSAGE. rules of law governing its disposition. It remains real estate in the hands of the trus "Surplusage” is another allegation with tee, to be disposed of according to the law out which the pleading would be adequate at of real property. Eubank v. Finnell (Mo.) law. State v. Whitehouse, 49 Atl. 869, 871, 73 S. W. 354, 355.

95 Me. 179; State v. Watson, 42 S. W. 726,

727, 141 Mo. 338. SURPLUS PROCEEDS.

"Surplusage" is defined in And. Law "Surplus proceeds," as used in Act 1855, Dict. as “matter in any instrument foreign $ 18, providing that, after a certain railroad to the purpose; whatever is extraneous, imshall be completed, equipped, and in oper- pertinent, superfluous, or unnecessary." Suration, it shall be required to pay into the plusage, in construing a writing, may be retreasury of the state the surplus proceeds or jected. Adams V. Capital State Bank, 20 all land sales or such other securities as may South. 881, 882, 74 Miss. 307. be provided, etc., means only so much of such proceeds as remains after deducting the

“Surplusage” is that which is impertiamount of all expenses and obligations law. nent or entirely superfluous, as not being fully incurred by the corporation in com- necessary either to the substance or the form pleting, equipping, and putting in operation of the pleading. Gould, Pl. c. 3, § 11. Where its railroad. Hannibal & St. J. R. Co. v.

attached property is replevied, and, after a Bartlett, 123 Mass. 15, 19.

judgment for plaintiff in the attachment suit and a judgment for defendant in the replevin

suit for a return of the property, the sheriff SURPLUS PROFITS.

brings an action against the surety on the "Surplus profits," as used in Act April replevin bond, an allegation in the complaint 11, 1862, § 10, providing that it shall not be that search has been made on the execution lawful for a banking corporation or the di- on the judgment in the attachment suit for rectors to make any dividends, except from property of the judgment debtors, and that surplus profits arising from the business of none could be found, is mere surplusage, the corporation, imports an excess of re since, if it were stricken out, a good cause ceipts over expenditures, and without re- of action would remain. Bradley v. Reynceipts there cannot properly be said to be olds, 61 Conn. 271, 278, 23 Atl. 928. profits. Money earned as interest, however well secured or certain to be presently paid, do not render it insufficient, when there is

Surplusage allegations in an indictment cannot in fact be distributed as dividends to sufficient matter alleged to indicate the crime stockholders, and does not constitute surplus and the person charged. State v. Sarlls, 34 profits, within the meaning of the statute. N. E. 1129, 1130, 135 Ind. 195. People v. San Francisco Sav. Union, 13 Pac. 498, 72 Cal. 199.

Rest or residue distinguished.

"Surplusage," as used in a will direct, SURPLUS WATER.

ing the surplusage of property to be divided Where the original owner of land on pro rata among the beneficiaries therein, is both sides of the river operated a gristmill not equivalent to “rest” or “residue," har. on the west side, where the river bed was ing a more restricted meaning than either divided into two channels, and where the of such terms, and more properly applied to

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