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The Surety
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The Surety
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THE SURETY.The surety is a favored debtor. It is said that no rule is
better settled.1 *"Where any act has -been done by the obligee
that may injure the surety the court is very glad to lay hold of
it in favor of the surety." 2 "There is no moral obligation on
the security beyond or superadded to his legal obligation.". 3
But upon what principles of justice is the rule founded? Is it
not the usual complex of tradition, psychology, and economics
that. makes most rules of law easier to state than to explain?
Active sympathy may be expected for one who has gratuitously
bound himself for the debt or default of another in disregard of
the scriptural warning.4 Antonio is not the only reckless hero
that has found a court predisposed to assist him. So also, it
may be politic to encourage co-operation in mercantile transac-
tions by reducing to a minimum .the risk of the accessory.5 The
doctrine, too, may have been inherited from an earlier state of
society where the very harshness of the law of suretyship called
for the strictest definition of its limits. All of these elements
may and usually do enter in varying proportions into the modern
attitude toward one of the oldest relations of the law.
Collateral security, that is a secondary obligation annexed
to a contract to guarantee its performance, or the pledging of
property to insure the performance of a principal engagement, or
to furnish means of indemnity in case of non-performance, is an
idea familiar to modern law and was fairly developed in the
legal systems of some of the civilized nations of antiquity. But,
speaking relatively, it is recent; that is, it is an idea that belongs
1State v. Churchi 48 Ark. 426 (1886); In re Sherry, 25 Ch. D. 703
(1884); Brandt on Suretyship (3d Ed.), Sec. io6.
2
- Law v. East India Co., 4 Ves. 824 (x799).
'Winston v. lMves, 4 S. & P. (Ala.) 269 (1833) ; Ratcliffe v. Graves, i
Vern. 196 (1683); Simpson v. Field, 2 Chan. Ca. 22 (I679).
""He that is surety for a stranger shall smart for it, and he that
hateth suretyship is sure." Proverbs xi, z5.
"Without these constant acts of mutual kindness and assistance, the
course of commerce .would be prodigiously impeded and disturbed." Per
Kent, C. J., in Ludlow v. Simond, 2 Caines Ca. I (x8o5), at page S&
(40)
, THE SURETY 41
to the later growth of any system of law in which it appears.
For among primitive peoples there is no credit and each trans-
action must be final, in form at least. Difficulties would occur
chiefly in executing the judgments of the group assembled as a
court. The wrongdoer must pay, but present satisfaction is all
that the injured person is obliged to take. The delinquent may
then do one of three things. He may hand over property in
settlement of the liability, perhaps with the privilege of redemp-
tion, the forerunner of the modern pledge and mortgage. He
may surrender himself and work out the debt in quasi servitude.
Or, he may surrender to the creditor, a relative or friend, as a
provisional satisfaction while he proceeds to acquire the sum
directed to be paid, the predecessor of the modern surety or
guarantor." Indeed, the surety was in the beginning no more
than an animated gage or hostage, as that term is still under-
stood in international law, 7 delivered over-to imprisonment, per-
haps servitude, but subject to redemption. He frees the debtor,
taking his place just as a res would." Brissaud, writing of the
early middle ages, a time of archaic survivals, describes the
position of the surety as follows:
"The creditor kept him near himself, sometimes sequestrated,
or even in irons; he was authorized to take vengeance upon him if
the debtor did not pay his debt at maturity, just as he would have
taken vengeance upon the person of the debtor (it was death, mutila-
tion, slavery for debts). Such a prospect as this must have led the
hostage to neglect no means of getting the debtor to free himself
of the obligation. Also, thenceforth one can account for two of
the most remarkable characteristics of the primitive suretyship: Ist,
in giving surety, the debtor frees himself; 2d, the death of the
surety destroys the right of the creditor; the fact of being in his
hands like a pledge could not be transmitted to the heirs of the
hostage. Of course, moreover, the creditor had to feed his hostage,
which gave rise to the gibe, 'The banquet of a hostage is a costly
banquet.' In order to avoid these expenses, the creditor gave up
the person of his hostage, or, rather, did not demand that the
'The Pledge-Idea by J. H. Wigmore, IOHarv. L Rev. 43 (1897).
' Prof. Hershey says the last treaty secured by hostages was that of
Aix la Chapelle; 1745. Hershey's International Law 319n. In the present
war civilians are constantly held as hostages for the good conduct of their
neighbors.
*The Pledge Idea, supra; Kohler's Philosophy of Law (Amer. Ed.)
i58; 2 Pollock & Maitland Hist. 184.
, 42 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
hostage should be handed over to him as soon as the contract was
made. He contented himself with the promise that the hostage
would present himself as the first summons at the place which was
appointed beforehand, or which should be designated afterwards,-
a town, a castle, or an inn,-and from which place he was forbid-
den to depart until the debt should be paid. The laws seldom had
to see to the carrying out of this promise, because it was made a
point of honor to keep it; and, if necessary, excommunication would
have had satisfaction from the recalcitrant hostage (perjury or
quasi-perjury) or else he would have been taken by force (inter-
vention of the magistrates). Shutting up in prison was the natural
penalty for the infraction of this order; Beaumanoir recommended
that one give the hostage who has suffered this punishment better
nourishment than is furnished to prisoners for some crime. At the
same time, the hostage, and, as a consequence, the debtor, was
charged with the expenses occasioned by the sojourn of the former
in prison." s
For a long time it was the duty of members of the family to
act as surety for each other, an outgrowth of the earlier col-
lective liability of the family, and, in the middle ages, according
to some customs, the vassal was expected to act as pledge for
his lord."' Not to protect the surety against liability was a gross.
breach of faith that in time afforded grounds for rigorous legal
proceedings. Modern suretyship like the modem law of col-
lateral security developed through the progress of legal ideas, in
proportion as the payment of debts become better assured
through the growing power of the state, and the higher ethics
of trade relations due to commercial development. The moral
emphasis is transferred to the promise, the debtor's liability be-
comes more and more conspicuous, and the surety is forced into
the background, his liability becoming accessory. As to the
creditor, the more secure his position becomes, the less inclined
he will be to undertake what is in essence a preliminary execution
involving onerous duties on his part; self-help becomes a burden
'Brissaud's History of French Private Law (Continental Legal His-
tory Series) 574, where the authorities will be found collected. Laws of
King Aelfred, Sec. 4; Thorpe, 157.
" Coutume de Normandie (1727) 172; Laws of Gortyn, Sec. 11, 2 Law
Quarterly Rev. 150; Brissaud 573. Laws of King Edward, Sec. 9,Thorpe
165; Judicia Civitatis Lundoniae, Sec. 2, 3 Thorpe 243; Leges Henrici Primi,
Sec. 44, Thorpe 544. The Charter of Bristol provided that no burgess
should be forced to replevy any one, although dwelling on his land, Bor-
ough Customs (S.S.) 101.
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