which a person ought to have to contract a valid obligation as surety. Here several considerations arise common to this and other contracts. 2d. Of the qualities requisite for a person to be received as surety. Here are considered the solvency, domicil, &c. of the surety, principally important with us in cases of legal and judicial sureties, but not to be omitted in a book professing to treat on the whole subject. Vid. Louisiana Civil Code, Art. 3011, 3033. 3d. Of cases in which a debtor is bound to find a new surety in place of one before received. The laws of every State must present many cases which fall under this subdivision, but which are nevertheless passed over in silence by our author.

6

Section fourth. 1. In whose behalf, 2. In favor of whom, 3. In what manner the obligation of a surety may be contracted. The two first of these subdivisions reflect light on the general subject. The third embraces all the considerations in the second subdivision of Mr. Theobald's first chapter, and the matter of the second and third chapters, including his miscellaneous points' and guaranties of agents and partners. Until some more effectual remedy be found for the imperfection of divisions, I beg leave, says Dr. Reid- to propose this: when you meet with a division of any subject imperfectly comprehended, add to the last member an et cetera. . . . And this same et cetera shall be the repository of all members that shall, in any future time, show a good and valid right to a property in the subject.' This is the authority, I presume, upon which the 'miscellaneous points' were introduced. They belong to the category, et cetera, which makes, you know, a very conspicuous figure in Lord Coke's Commentary on Littleton.

The third subdivision of the fourth section, would lead to the analysis of the definition. 1. The person who makes the agreement; i. e. the surety himself, his agent or partner, from our author's No. 38 to 47 inclusive. 2. The form of the agreement or writing, embracing the miscellaneous points from 28 to 37 inclusive. 3. The contents of the agreement or writ ing, from 3 to 27 inclusive. 4. Cases embraced by the words, promise to answer for the debt, default, or miscarriage of another,' from 47 to 81 inclusive.

The rest of our author's divisions, from the 4th chapter to the end, are not liable to much exception, and correspond in

the main with Pothier's chapter. Faults of arrangement are important in books of science, because they give rise to obscure and imperfect conceptions, from which there is danger that the reader will never be delivered. Be so good, gentlemen, as to inform me in what year of our Lord, the critical rule — quid olim scripseris novum prematur in annum was abrogated as to writers on legal subjects? Most of our author's faults are evidently those of haste.

TENNESSEE STATUTES.

1. Mercantile Guaranties. The question decided in Wain v. Warlters has, perhaps, not been made in this State, because our statute avoids the ambiguity in the use of the word agreement, by which the question was produced. By this Statute,'No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the promise or agreement upon which such action should be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.' The word promise printed in italics, is not in the English statute, from which the courts of that country inferred that that word in the former part of the statute was not used as a synonyme of agreement, which was, therefore, to receive a technical interpretation. I should have been as well satisfied' says Mr. Justice Le Blanc, 5 East 20-‘if, recurring to the words used in the first part of the clause, they had used the same words again in the latter part, and said, "unless the promise or agreement upon which," &c. But not having so done, I think we must adhere to the strict interpretation of the word agreement which means the consideration for which, as well as the promise by which, the party binds himself. The corresondence between the phraseology of our statute and that suggested by the Judge, is not to be attributed to the suggestion, which was not made till nearly two years and a half after the statute was passed. It may be remarked, however, that the Tennessee legislature of 1801, judging from the statute book, was one of the most judicious that was ever assembled in the State.

EXTINGUISHMENT OF SURETISHIP.

2. Extinguishment of Suretiship. By the statute of limitations actions on simple contracts are barred in three years, except the action of debt, which not being mentioned in our statute, is barred, as by the statute of James I. in six years.-— The lapse of the period mentioned in the statute, extinguishes the obligation of the principal, and consequently, the accessory obligation of the surety. According to the first case cited by our author No. 146- it appears that payment of of the part debt by one of two joint and several contractors, will prevent the extinguishment of the obligation by limitation, as against the other surety. But if the obligation is severed by the death of one such contractor, a payment by the representative of the deceased, or by the survivor, does not prevent the limitation from extinguishing the debt as to the survivor, in the first case, nor as to the representative in the last. If this is the law of severed contracts, it is also of several. Hence it is concluded, that a payment by the principal will not deprive the surety of the benefit of the statute, since the contract of a surety is, in its nature, several; nor an acknowledgment by the principal. Upon this branch of the subject, by our statute of 1789, c. 57, $5,In case of the death of one joint obligor, the joint debt or contract survives against the heirs, executors and administrators of the deceased, as well as against the survivor; and if all die, it survives against the real and personal representatives of all. By the way, the word obligor is used here as a generic term, embracing contractors as well by deed as by simple contract. The effect of this enactment would seem to be to prevent the severance of joint contracts by the death of a co-contractor. If so, according to the authority of Burleigh v. Stoll, a payment or acknowledgment by the surviving, or by the personal representative of the deceased contractor, will prevent the operation of the statute in favor of the other party, though he may be merely a surety.

With regard to the extinguishment of the principal obligation by the presumptive bar, considered by our author-No. 147, the Supreme Court of Tennessee delivered an opinion in Blackburn v. Squib Peck's R. 60—with some hesitation, which

has been adhered to since. After suggesting some thoughts on the subject of length of time as applicable to our country, they sayThese considerations strongly incline a majority of the court present to the belief, that it might safely be left to a jury to say, on the naked fact of time alone, whether they would presume the debt paid, when the bond has been suffered to lie dormant for sixteen years, and whether a much shorter period would not be sufficient to raise the presumption where facts, such as named in the books "of settlement in the intermediate time," were proved by the defendant.'

3. Liability of Bail. Bail are, to some purposes, said to be fixed by the return of non est inventus upon the capias ad satisfaciendum; but, if they have by the indulgence of the court, time to render the principal until the appearance day of the last scire facias against them, they cannot be considered as completely and definitively fixed, till that period.' 221. By our act of 1794, c. 1, § 15, bail may, before final judgment against himself, surrender the principal in discharge of himself, during the session of the court, either to the court itself from which the process issued, or to the sheriff returning the process; or, to the sheriff in the recess of the court. According to this law, therefore, bail is not fixed till final judgment against himself. In White's Exr's. v. Cummins 1 Ten. Rep. 224- to a sci. fa., issued against the defendant as bail, he pleaded the death of the principal, after the return of the ca. sa. and issuing of the sci. fa., but before its return. The demurrer to this plea, the court held, that death of the principal at any time before final judgment against the bail, would discharge the bail.

4. Rights of Surety against Principal. 1. After judgment against Surety. A surety in any note, bill, bond, or obligation, or the personal representatives of such, against whom judgment has been rendered, may obtain judgment on motion against the principal or his personal representatives, for the full amount of the judgment and costs before any tribunal having cognizance of the sum. 1809, ch. 69. The act of 1831, ch. 59, extends this rule in favor of the indorser of a bond, bill, or promissory note, against the maker. But not expressly against the acceptor of a bill.

2. After payment of Judgment. Upon payment by a surety, or his real or personal representatives of the whole, or any part,

of a judgment rendered against him or his representatives, upon any note, bill, bond, or obligation, he or his representatives may obtain judgment on motion against his principal or his representatives real or personal, for the amount paid, in the court where the first judgment was rendered, or in any other court, on production of a copy of the record or judgment legally authenticated. 1801, c. 15, § 1. In the case of Love v. McCool – 1 Ten. R. 335 · the court held that where it did not appear on the face of the security, as it did not in that case, that the person making the motion, was surety, the court could not receive parol proof of the fact, and denied the motion. This decision was based on those parts of the constitution which secure the trial by jury. This was in October, 1808. The legislature of 1809, in the second section of the act of that year already quoted, directed the courts, in such cases, to empannel a jury to ascertain the fact of suretiship. The third section of the act of 1801, prohibits sureties from confessing, or permitting judgment to go by default, if the principal will enter himself a defendant to the suit, and tender to the surety collateral security approved by the court where the suit is pending. In the case of Williams v. Green-4 Hayw. 235 the court ruled, that notice of the motion need not be given by the surety to the principal; and that if judgment be taken on motion, without notice, against an executor who has fully administered, that may be shown on the sci. fa., or in the action to charge the executor de bonis propriis. It may be added, that this is not inconsistent with the general rule, that if a party do not avail himself of the opportu nity of pleading matter in bar to the original action, he cannot afterwards plead it, either in another action, founded on the first, or in a scire facias. 1. Saund. 219 c. Because, in the case stated, the executor has no opportunity of pleading to the motion. If a surety, therefore, wishes to deprive the executor of his principal of the plea of plene administravit, he should notify him of the motion. This course might be important to the surety, because the executor might exhaust the assets in the payment of simple contract debts, between the rendition of the judgment on motion and service of the sci. fa. In the case quoted above, the court also declared that a surety who is sued, is not bound to notify his principal of that fact. For the contract implied in law between them, is, that the surety shall be