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ART. I. - PRINCIPAL AND SURETY. THEOBALD. LAW OF
A Letter to the Editors of the American Jurist, containing
Observations on Theobald's Treatise on the Law of Principal and Surety, with reference to the Laws of Tennessee on that subject.
Your readers know, that this work has been, already, briefly noticed in the Jurist. Its publication lately, however, by Mr. Littell of Philadelphia, as the first number of the Law Library, under the editorial conduct of Sergeant and Lowber, as it has afforded me an opportunity of seeing the work for the first time, will be my excuse for adverting to it again. By the way, this treatise has been very judiciously selected to pioneer this new enterprise. The value of the quarry is proved by the polish of which its product has shown itself susceptible. And Mr.
Theobald has presented the profession with a fine specimen of what science can educe from that mine of rude materials, the Reports. He has borrowed his arrangement from the civilians, the source from which Hale and Blackstone before him, borrowed theirs, and his matter from the courts, and has produced a work that no lawyer can read without delight. But it is not without blemishes, some of which are noticed by the author in his preface; and there are others noticed neither by him nor by your correspondent. The author, however, has not been thrown under any very
VOL. XI.--NO. XXI.
signal obligations to his American Editors. No traces of their superintendence are discoverable. Faults which may be supposed to belong to the English copy, have been religiously respected. Even the misprint of permicit for promicit, pointed out by your correspondent, reappears. This makes me suspect that the two lines, which stand at the top of page 17, and which belong to the top of page 19, may also, have been transferred from the English copy. Nevertheless, without an editor at all, the Law Library ought to command an extensive patronage from the lawyers of the interior. Because so far as benefits may flow from the labors of the English elementary writers, it places them upon an equality with their more favored breibren of the seaboard. For one, 1 prosess myself deeply obliged to the projectors of this work.
Indulge me before I proceed, in a little verbal criticism. In this book, there is the greatest consusion in the use of a class of words of the most frequent recurrence. These are guarantor and guarantee, a surety ; guarantee, the person secured, and guarantee, a verb; and guarantie, the contract of security, and perhaps, a verb. Were I to write a book on this subject, my use of this class of words should be uniform, even at the expense of a little singularity. My guarantor should guarrant, and in so doing, should make the contract of guaranty in favor of the guarantee. This change would make the use of the word which has been appropriated to personal contracts, correspond with the use of the same word in contracts respecting the reality, The words warrantor, warrant, warranty and warrantee are in common use, and convey the ideas annexed to them without confusion. Why should the very same word be deprived of its legitimate forms, merely by the change of its initial letter? That change may be entitled to some regard, because, perchance, g may be more euphonious than w, to Norman organs. But with regard to the other varieties, they evidently arose from the ignorance or carelessness of spellers; and I cannot feel obliged to reverence forms which owe their genesis to the Jo Strickland and Jack Downing class of literati. The hiatus in the participle deduced from guarantee or guarranty used as verbs, made our great lexicographer suggest guarranting as a substitute for guaranteeing and guarrantying. So you see, that my innovation is quite sustained by analogy, and almost, by
authority. But the other class of words most frequently used in this book, I mean surety and security, is not abused, nor indeed in any other English work, as they are in the Tennessee statutes and reports. The word surely is almost entirely excluded from these, and security is substituted, while the idea appropriated to security is expressed by a circumlocution. Now, deposite and pledge are synonymes of security, but surety never. A deposite may be, and a pledge is, a species of security. A bond with surety is a security. Thus Blackstone 'Suspected persons are made to find particular and special securities for their future conduct. This security consists in being bound, with one or more sureties in a recognizance or obligation to the king,' &c. : and Theobald — 'the plaintiffs, on becoming surety for the defendant, took from him a counter security,'n. People who wince as we do, when the purity of our English is called into question, ought to be a little more particular to conform to the usage of standard writers. Those who prosess to be lawyers ought, at least, to be acquainted with the technical language of the science. Doubtless, a man might be very scientific and speak a patois, but it is impossible that a man can possess accurate knowledge without clear conceptions; and how can we know that he has such conceptions, unless he manisests it in his language ?
There is a use of the word surety in Theobald's definition, which is not allowable. He calls the guarantor's engagement
the contract of surety. Now there is no such contract. Evans using a little latitude, has properly translated the first words of Pothier's definition, le cautionement, the engagement of a surety, not the contract of surety, as Theobald has done. Suretyship, however, is the precise, equipollent of cautionement; and it would be a decided improvement of Mr. Theobald's definition, to say — Suretyship takes place, &c. But this definition, so called, is obviously only a description; and, besides, it is inaccurate, because it omits what is essential to the contract since the statute of frauds. Pothier's description is not liable to this observation, because as he explains afterwards, — Sec. 400,- The engagement may be made by simple agreement, either by an act belore notaries, or under private signature, or even verbally.' That can hardly lay claim to the name of definition, which neither marks the circumstances in which the thing defined agrees with other things of the same kind, nor the circumstances in which it differs from them. In common with other contracts, suretyship has three ingredients, — parties, an object, consent and consideration ; in common with some, it must be in writing; the quality proper to itself is, that it is for another.
The first and last ingredients have, for their expression, appropriate general terms, agreement and guaranty. Then — suretiship is a written agreement of guaranty. This definition, as every definition may, legitimately supposes that the technical words, agreement and guaranty, have been already explained, as they would be, before the chapter on suretyship, in a complete treatise on contracts. The following is a paraphrase of this definition. Suretyship is a written undertaking, upon sufficient consideration, by one person to answer for the performance of some duty by another. But this paraphrase expresses no idea that is not comprehended in the definition.
The arrangement of the matter of a work on this subject should consist in an analysis of the definition. Whoever examines will find that if Mr. Theobald had confined bimself more closely than he has done to the arrangement of Pothier, his work would have presented a much more comprehensive, scientific, compact and perspicuous outline of the subject. Pothier's chapter is divided into seven sections. In the first — of the nature of the obligation of surety — he describes, and draws inferences from the contract. In the second, he enumerates the different kinds of sureties. The omission of a similar section in Mr. Theobald's book, must be regarded as an imperfection. Pothier enumerates three kinds of sureties; conventional, legal, judicial : Conventional would include drawers and endorsers, whose obligation is never mentioned till we reach the latter part of our book, where their discharge is treated : Legal, would embrace all such as are required previously to the exercise of some legal right or office, as by plaintiffs for the prosecution of suits, by personal representatives, by guardians, and public officers : Judicial, such as are given in or out of court in compliance with some order or decree.
The third section — of the qualities which sureties ought to have - is divided into three subdivisions. 1st, Of the qualities