SURETYSHIP 6813 SURFACE LINE jects, persons, or periods of time not neces- | operated as a discharge of the principal and Barily 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. As requiring a primary obligation. ▲ contract of suretyship is collateral to and predicated upon a primary obligation. In order to establish suretyship, it is first necessary to prove the existence of the primary contract. Thornburg v. Allman, 35 N. E. 1110, 8 Ind. App. 531. "A contract of suretyship is accessory to an obligation contracted by another person, either contemporaneously, or previously, or subsequently," to answer on the default of the principal. "It is the essence of the contract that there be a subsisting, valid obligation of a principal debt. Without a principal there can be no accessory, and by the extinction of the former the latter becomes extinct." Russell v. Failor, 1 Ohio St. 327, 329, 59 Am. Dec. 631. According to the civil law a party who enters voluntarily into an agreement is bound by his stipulation, and he who accepts the guaranty looks to it for the ultimate fulfillment of the original undertaking. According to Code La. art. 3004, suretyship is an accessory 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. Pothier says a suretyship is a contract by which a person obligates himself on behalf of a debtor to a creditor for the payment of a whole or a part of what is due from such debtor, by way of accession to his obligation. Ringgold v. Newkirk, 3 Ark. (3 Pike) 96, 108. Rev. Civ. Code, art. 3035, defines "suretyship" to be "an accessory 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." Lachman v. Block (La.) 15 South. 649, 650. The obligation of a surety is an obligation accessory to that of a principal debtor. It is said the essential of this obligation is that it should be a valid obligation of such principal. Bernd v. Lynes, 43 Atl. 189, 71 Conn. 733. SURFACE. "Surface" means that part of the land which is capable of being used for agricultural purposes. Murray v. Allred, 43 S. W. 355, 358, 100 Tenn. 100, 39 L. R. A. 249, 66 Am. St. Rep. 740 (citing Railway Co. v. Checkley, L. R. 4 Eq. 19; Hext v Gill, 7 Ch. App. 699; Attorney General v. Timline, 5 Ch. Div. 762). The word "surface," when specifically used as a subject of conveyance, has a definite and certain meaning, and means that part of the land which is or may be used for agricultural purposes. The very fact of conveying the surface carries with it the idea of an express grant alone of the surface, and severs it from every other material composing the land. Williams v. South Penn Oil Co., 43 S. E. 214, 215, 52 W. Va. 181 (citing Knight v. Iron Co., 47 Ind. 105, 17 Am. Rep. 692). "Surface," as used in a grant of minerals, wherein it was provided that the grantee should take his right under the serv A "suretyship" is a mere accessory promise by which a person binds himself for another already bound. An individual member of a copartnership cannot, therefore, be-itude that he would support the surface come surety on an attachment bond executed by his firm as principal; for he cannot be both principal and surety at one and the same time, in the same obligation, and for the same liability. Bayne v. Cusimano, 23 South. 361, 363, 50 La. Ann. 361. A contract of suretyship is usually 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. Therefore, if the principal is discharged because of matters inherent in the transaction, even after judgment against the surety, the latter will be exonerated thereby. Where a tax collector executed an additional bond, on which was one new surety besides the sureties on the first bond, and separate actions were brought and the same breaches assigned for a default covered by each, a judgment on a verdict in an action on the first bond in favor of the obligors above his mine, meant all strata superincumbent upon the mineral strata granted, and not merely the geometrical surface. Yandes v. Weight, 66 Ind. 319, 325, 32 Am. Rep. 109. "Surface," as used in Municipal Code, & 494 (66 Ohio Laws, p. 232), providing that the owner or possessor of a city or village lot shall be liable for damage occasioned to buildings on any adjoining lots by excavation which he makes on his own lot to the depth of more than nine feet below the curb of the street, or, if there be no curb, below the surface of the adjoining lots, means "an actual existing surface, whether it be a natural surface, or the result of filling or grading the lots." Burkhardt v. Hanley, 23 Ohio St. 558, 559. SURFACE LINE. The "surface line" of a street is as es sential a part of the street as its lateral lines. Righter v. City 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. E. 914, 915, 47 W. Va. 316. SURFACE RIGHTS. "Surface rights," as used in a contract sale of surface rights of land, means the entire surface of the land, reserving the minerals to the grantor. Keweenaw Ass'n v. Friedrich, 70 N. W. 896, 897, 112 Mich. 442. SURFACE STREAMS. "Surface streams" are streams which flow in a permanent, distinct, well-defined channel from the land of one owner to that of another. Tampa Waterworks Co. v. Cline, 20 South. 780, 782, 37 Fla. 586, 33 L. R. A. 376, 53 Am. St. Rep. 262. "Surface streams" are regarded as a species of private property, and their use is regulated by rules differing very materially from the rules applied to subterranean streams. Roath v. Driscoll, 20 Conn. 533, 541, 52 Am. Dec. 352. SURFACE WATERS. "Surface waters" are those which, however originating, are shed and passed from the lands of one proprietor to those of another, without any distinct or well-defined channel. Tampa Waterworks Co. v. Cline, 20 South. 780, 782, 37 Fla. 586, 33 L. R. A. 376, 53 Am. St. Rep. 262. “Surface water” is water on the surface of the ground, the source of which is so temporary or limited as not to be able to maintain for any considerable time a stream or body of water having a well-defined and substantial existence; and where water from surrounding lands collects in a basin, which in rainy season holds large quantities of water, and there is no natural outlet, but the basin sometimes becomes dry by evaporation, the water is surface water. Brandenburg v. Zeigler, 39 S. E. 790, 791, 62 S. C. 18, 55 L. R. A. 414, 89 Am. St. Rep. 887 (citing Cairo, V. & C. Ry. Co. v. Brevoort [U. S.] 62 Fed. 129, 131, 25 L. R. A. 527; Lawton v. South Bound R. Co., 39 S. E. 752, 61 S. C. 548). "Surface waters" are waters of a casual and vagrant character, which ooze through the soil or diffuse or squander themselves over the surface, following no definite course. They are waters which, though customarily and naturally flowing in a known direction and course, have nevertheless no banks or channels in the soil, and include waters which are diffused over the surface of the ground, and are derived from rains and melting snows, occasional outbursts of water, which in time of freshet or melting of snows descend from the mountains and inundate the country, and the moisture of wet, The law is well settled in this state that water overflowing the banks of a stream must be regarded as "surface water." Edwards v. Missouri, K. & T. R. Co., 71 S. W. 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). which at times of ordinary floods spreads The superabundant water of a stream, out and overflows its bank and channel, is deemed "surface water." The flow of a river, when swollen beyond the low-water mark of the dry seasons by the ordinary rains which fall in wet seasons or by the melting of snows, does not constitute surface water. Surface water is that which is diffused over the ground from falling rains or melting snows, and continues to be such until it reaches some bed or channel in which 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 water" includes such water as is carried off by surface drainage; that is, drainage independently of the water course. Bunderson v. Burlington & M. R. R. Co., 61 N. W. 721, 722, 43 Neb. 545 (cited in Morris sey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 N. W. 946). less from surface water, but, after it enters All water courses are made up more or into the stream and commences to flow within its banks, it is no longer to be considered "surface water." Surface water is consid ered a common enemy, that each proprietor of land may and must fight for himself, with a view to protect himself without being responsible to others therefor, provided he does Hannovan, 55 Mo. 462, 467. so in a usual and careful manner. Jones v. "Surface water" is that which is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or from the main current, or leaving the stream springs. A flood water, becoming severed never to return, and spreading out over low Chicago, B. & Q. R. Co., 56 N. W. 946, 38 grounds, is "surface water." Morrissey v. Neb. 406; Crawford v. Rambo, 7 N. E. 429, 431, 44 Ohio St. 279; O'Connell v. East Tennessee, V. & G. Ry. Co., 13 S. E. 489, 491, 87 Ga. 246, 13 L. R. A. 394, 27 Am. St. Rep. 246. Overflow from a river in time of high water is "surface water." Jean v. Pennsylvania Co., 36 N. E. 159, 9 Ind. App. 56; SURFACE WATERS 6815 SURGERY Shane 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 larger number class such water as part of the SURFACED-SURFACING. stream, and hold that it is not surface water. In O'Connell v. East Tennessee, V. & G. Ry. Co., 13 S. E. 489, 87 Ga. 246, 13 L. R. A. 394, 27 Am. St. Rep. 246, the authorities on the question as to what constitutes surface water and as to the rights of parties to divert water, whether surface or otherwise, are fully reviewed. The court says: "If the flood water becomes severed from the main current, or leaves the stream never to return, and spreads out over the lower ground, it has become surface water; but if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel animo revertendi presently to return, as by the recession of the waters, it is still to be regarded as part of the river." In Cairo, V. & C. Ry. v. Brevoort (U. S.) 62 Fed. 129, 25 L. R. A. 527, the court says: "Surface water ceases to be such when it enters a water course in which it is accustomed to flow; for, having entered the stream, it becomes a part of it and loses its original character. Surface water is that which is diffused over the ground from falling rains or melting snows, and continues to be such until it reaches some bed or channel in which water is accustomed to flow." Sul The use of the word "surfaced," in a contract with a railroad company to lay its tracks and to make the track in good running order, well surfaced, high, evenly and firmly embedded, etc., is employed in the sense of those engaged in the construction of such roads, and may be explained by extrinsic evidence. Western Union R. Co. v. Smith, 75 Ill. 496, 502. livan v. Dooley, 73 S. W. 82, 83, 31 Tex. Civ. App. 589. A lake fed by streams which in times of flood find exit by rapid percolation through a bed of gravel, so that there is a sensible current toward the gravel bed, is a water course and not merely surface water. Hebron Gravel Road Co. v. Harvey, 90 Ind. 192, 194, 46 Am. Rep. 199. A stream does not cease to be a water course, and become merely surface water, because at a certain point it spreads out over a level meadow several rods in width, and flows for a distance without defined banks, before flowing again in a definite channel. It is sometimes difficult to distinguish between a water course and mere surface wa "Surfacing," as used in a contract for railway construction, seems to be a technical term among civil engineers, and does not include filling in between the ties nor raising the roadbed. Snell v. Cottingham, 72 Ill. 161, 167. "Surfacing track," as applied to a railroad, means filling the dirt and gravel between the ties, and dressing up the surface. Heine v. Chicago & N. W. Ry. Co., 17 N. W. 420, 58 Wis. 525. SURGEON. See "Police Surgeon"; "Veterinary Surgeon." A dentist is one whose profession is to clean and extract teeth, repair them when diseased, and replace them, when necessary, by artificial ones; and a dentist will not be held to be a surgeon or physician, within the statutes relating to privileged communication. People v. De France, 62 N. W. 709, 711, 104 Mich. 563, 28 L. R. A. 139 (citing State ex rel. Flickinger v. Fisher, 24 S. W. 167, 119 Mo. 344, 22 L. R. A. 799); City of Cherokee v. Perkins, 92 N. W. 68, 69, 118 Iowa, 405. SURGERY. Webster's Dictionary describes "surgery" as a branch of medical science. It cannot be denied that practical surgery is ordinarily thus spoken of. United States v. Massachusetts General Hospital, 100 Fed. 932, 938, 41 C. C. A. 114. ter. Much may depend upon the soil and other surroundings and conditions. It is 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 bed, sides, or banks, and usually discharge itself into some other stream or body of water. 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 and "surgery" is therapy of a distinctly op- were kept by the physician employed on board a passenger ship. Allan v. State S. S. Co., 30 N. E. 482, 484, 132 N. Y. 91, 15 L. R. A. 166, 28 Am. St. Rep. 556. SURNAME. Where a testator devised lands to M. for life, he taking and using the testator's surname of L., instead of his own surname, with limitations over to his first and other sons in strict settlement, they severally taking and using the testator's surname, instead of their own, and with limitations over to other persons, after which the will provided that, when any of the premises should vest in any person not bearing the surname of L., that person should take on himself such name and use the same for his own, and should within three years procure his name to be altered to the testator's surname, the word "surname" was not used to denote a name inherited from the father, and a bearing de facto answered every useful purpose of an actual change, and was sufficient to satisfy the general and ordinary meaning of the words "bearing the surname," and therefore one who took under the limitation over, who was bearing the name de facto, did not forfeit his right by not having the change made by legislative act within the time limited. Luscombe v. Yates, 5 Barn, & Ald. 544. SURPLUS. See "Accumulated Surplus." "Surplus" is defined as "overplus; that which remains when use is satisfied; excess beyond what is prescribed or wanted in law; the residue of an estate after the debts and legacies are paid." People's Fire Ins. Co. v. Parker, 35 N. J. Law (6 Vroom) 575, 577. "Surplus," as used in Ky. St. § 2132, providing that, after the death of either the husband or wife, the survivor shall have an absolute estate in one-half of the surplus personalty left by such decedent, means what is left after payment of funeral expenses, charges of administration, and debts. Towery v. McGaw (Ky.) 56 S. W. 727, 728. "Surplus," as used in a will giving the use, etc., of the testator's real estate to his wife for life, and also his personal estate of every description absolutely, "having full confidence that she will leave the surplus to be divided at her decease justly among his children," means all that shall remain thereafter, and does not give any right of disposition to the widow during her life. Appeal of Coates, 2 Pa. (2 Barr) 129, 137. Expert evidence has been held admissible that the word "surplus," among insur ance people, when applied to life insurance "means a sum of money or assets which has been accumulated over and above all debts and liabilities of any and all kinds whatsoever." Fry v. Provident Sav. Life Assur. Soc. of New York (Tenn.) 38 S. W. 116, 126. A provision in an insurance policy entitling insured to participate in the distribution of the "surplus" of the company issuing it, according to such methods as may be adopted by the company, means the amount of funds in the hands of the company after deducting its liabilities, as ascertained by certain rules adopted by the insurance de partment for determining the value of each risk. Greeff v. Equitable Life Assur. Soc., 54 N. E. 712, 715, 160 N. Y. 19, 46 L. R. A. 288, 73 Am. St. Rep. 659. War Revenue Act July 13, 1898, c. 448, 2, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2286], provides that bankers and persons and firms engaged in various occupations, employing a capital not exceeding $25,000, shall pay a certain additional sum for every $1,000 of capital above $25,000, and in estimating capital surplus should be included. It was held that, as the act did not refer exclusively to national banks, the word "surplus,” as used in the act, would not be restricted, in assessing national banks, to the meaning given it in previous national bank legislation as covering only so much of the surplus profits as the board of directors have set apart for a reserved capital, but includes the entire surplus of assets over liabilities. Leather Mf'rs' Nat. Bank v. Treat (U. S.) 116 Fed. 774, 775. Where a testator, after making several devises, declared that of the "rest, residue, and remainder of my estate I give and be queath" several legacies, and that "if, after the payment of all these legacies, there should remain a surplus undisposed of, I do give and bequeath the same unto my sons," the word "surplus" should be construed to include the real estate. Lamb v. Lamb, 30 N. E. 133, 131 N. Y. 227. A Pennsylvania testator gave to his wife a life estate in the homestead and two lots, and charged upon his goods and lands an annuity to her, but did not mention his lands in any other part of the will, and then, after sundry legacies, bequeathed the surplus to 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 relate to his lands. Allen's Ex'rs v. Allen, 59 U. S. (18 How.) 385, 391, 15 L. Ed. 396. SURPLUS EARNINGS. such mill, and he afterwards conveyed the land, with a provision that the grantee might put a dam across the river and use the surplus of water on his side of the river, not to the injury of the grantor's gristmill, the word "surplus" should be construed to mean the surplus of water in the east channel over the amount necessary to run grantor's mill. Eastman v. Parker, 27 Atl. 611, 612, 65 Vt. 643. In 1 Rev. St. p. 415, § 6, providing that moneyed corporations shall be liable to taxation on a valuation equal to the amount paid in and their surplus earnings, "surplus 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. Y. 64, 68. SURPLUS MONEY. "Surplus money" realized by sale of lands owned under a deed of trust is treated as realty, and not personalty, in respect to rules of law governing its disposition. It remains real estate in the hands of the trustee, to be disposed of according to the law of real property. Eubank v. Finnell (Mo.) 73 S. W. 354, 355. SURPLUS PROCEEDS. intention of St. 1833, p. 261, § 1, declaring that the canal commissioners, after diverting the waters of a stream, must first resume the use of all surplus water which had been leased on that level. Lynch v. Stone (N. Y.) 4 Denio, 356, 359. SURPLUSAGE. "Surplusage" is another allegation with out which the pleading would be adequate at law. State v. Whitehouse, 49 Atl. 869, 871, 95 Me. 179; State v. Watson, 42 S. W. 726, 727, 141 Mo. 338. "Surplusage" is defined in And. Law Dict. as "matter in any instrument foreign to the purpose; whatever is extraneous, impertinent, superfluous, or unnecessary." Surplusage, in construing a writing, may be rejected. Adams v. Capital State Bank, 20 South. 881, 882, 74 Miss. 307. "Surplus proceeds," as used in Act 1855, §18, providing that, after a certain railroad shall be completed, equipped, and in operation, it shall be required to pay into the treasury of the state the surplus proceeds of all land sales or such other securities as may be provided, etc., means only so much of such proceeds as remains after deducting the amount of all expenses and obligations law-nent or entirely superfluous, as not being fully incurred by the corporation in completing, equipping, and putting in operation its railroad. Hannibal & St. J. R. Co. v. Bartlett, 123 Mass. 15, 19. SURPLUS PROFITS. "Surplus profits," as used in Act April 11, 1862, § 10, providing that it shall not be lawful for a banking corporation or the directors to make any dividends, except from surplus profits arising from the business of the corporation, imports an excess of receipts over expenditures, and without receipts there cannot properly be said to be profits. Money earned as interest, however well secured or certain to be presently paid, cannot in fact be distributed as dividends to stockholders, and does not constitute surplus profits, within the meaning of the statute. People v. San Francisco Sav. Union, 13 Pac. 498, 72 Cal. 199. SURPLUS WATER. Where the original owner of land on both sides of the river operated a gristmill on the west side, where the river bed was divided into two channels, and where the "Surplusage" is that which is imperti necessary either to the substance or the form of the pleading. Gould, Pl. c. 3, § 11. Where attached property is replevied, and, after a judgment for plaintiff in the attachment suit and a judgment for defendant in the replevin suit for a return of the property, the sheriff brings an action against the surety on the replevin bond, an allegation in the complaint that search has been made on the execution on the judgment in the attachment suit for property of the judgment debtors, and that none could be found, is mere surplusage, since, if it were stricken out, a good cause of action would remain. Bradley v. Reynolds, 61 Conn. 271, 278, 23 Atl. 928. do not render it insufficient, when there is Surplusage allegations in an indictment sufficient matter alleged to indicate the crime and the person charged. State v. Sarlls, 34 N. E. 1129, 1130, 135 Ind. 195. Rest or residue distinguished. "Surplusage," as used in a will directing the surplusage of property to be divided pro rata among the beneficiaries therein, is not equivalent to "rest" or "residue," having a more restricted meaning than either of such terms, and more properly applied to |