See also:

• GUARANTEE (sometimes spelt " guarantie " or " guaranty "; an O. Fr. form of " warrant," from the Teutonic word which appears in German as wahren, to defend or make safe and binding)

Lakeman, L.R. 7 Q.B. p. 202). According to various existing codes See also:

• CIVIL

R. (N.S.) II, 14). No See also:

• SPECIAL

II).. According to several codes civil sureties are made divisible into conventional, legal and judicial (Fr. and See also:

• BEL

Homan, 3 Mac. & G. 378, 397). Moreover, even where the contract relied upon is in the form of a policy guaranteeing the solvency of a surety for another's debt, and is therefore governed by the See also:

• DOCTRINE

& E. 309; Barrell v. Trussell, 4 Taunt. 117), which, as in other cases, may consist either of some right, See also:

• INTEREST

By the See also:

• INDIAN

14), which by § 6 enacts that " no action shall be brought whereby to charge any person upon or by See also:

• REASON (Lat. ratio, through French raison)

In See also:

• INDIA
• INDIA, FRENCH

It may therefore be available in support of a See also:

• DEFENCE
• DEFENCE (Lat. defendere, to defend)

The See also:

• GENERAL
• GENERAL (Lat. generalis, of or relating to a genus, kind or class)

65-161, where these principles are discussed in detail by the See also:

• LIGHT

A guarantee for the payment of goods, however, requires no stamp, being within the exception contained in the first See also:

• SCHEDULE

823; Spain, 1826; Italy, 1900; Holland, 1859; Lower Canada, 1933). By sec. 128 of the Indian Contract Act 1872 the liability of the surety is, unless otherwise provided by contract, coextensive with that of the principal. Where the liability of the surety is less extensive in amount than that of the principal debtor, difficult questions have arisen in England and America as to whether the surety is liable only for part of the debt equal to the limit of his liability, or, up to such limit, for the whole debt (See also:

• ELLIS (originally SHARPE), ALEXANDER JOHN (1814-189o)
• ELLIS, GEORGE (1753-1815)
• ELLIS, ROBINSON (1834- )
• ELLIS, SIR HENRY (1777-1869)
• ELLIS, WILLIAM (1794 – 1872)

Moreover, in the case of a See also:

• JOINT (through Fr. from Lat. junctum, jungere, to join)

Priestner, L.R. 2 Exch. 66, 71). The surety is not to be changed beyond the limits prescribed by his contract, which must be construed so as to give effect to what may fairly be inferred to have been the intention of the parties, from what they themselves have expressed in writing. In cases of doubtful import, recourse to parol evidence is permissible, to explain, but not to contradict, the written evidence of the guarantee. As a general rule, the surety is not liable if the principal debt cannot be enforced, because, as already explained, the obligation of the surety is merely accessory to that of the principal debtor. It has never been actually decided in England whether this rule holds good in cases where the principal debtor is an See also:

• INFANT (in early forms enfaunt, enfant, through the Fr. enfant, from Lat. infans, in, not, and fans, the present participle of fari, to speak)

309 C.A.). It is not always easy to determine for how See also:

• LONG, GEORGE (1800-1879)
• LONG, JOHN DAVIS (1838– )

When, however, this has occurred, the creditor, in the absence of express agreement to the contrary, may sue the surety, without even informing him of such default having taken See also:

• PLACE (through Fr. from Lat. platea, street; Gr. IrAar6s, wide)

8, is it any longer available in Scotland where, prior to the last-named enactment, the benefit of discussion, as it is termed, existed. In England, however, before any demand for payment has been made by the creditor on the surety, the latter can, as soon as the principal debtor has made default, compel the creditor, on giving him an indemnity against See also:

• COSTS

2025-2027; Spain, 1837; Portugal, 835- 836; Germany, 426; Holland, 1873-1874; Italy, 1911-1912; Lower Canada, 1946; Egypt [mixed suits], 615,616). The usual mode in England of enforcing liability under a guarantee is by action in the High See also:

• COURT
• COURT (from the O. Fr. court, Late Lat. cortis, curtis, a popular form of class. Lat. cohors, gen. cohortis; the mod. Fr. form tour is due to the influence of the Lat. curia, the word used in medieval documents to translate " court " in the feudal sense)
• COURT, ANTOINE (1696-176o)

See also:

• SHAW, GEORGE BERNARD (1856– )
• SHAW, HENRY WHEELER (1818–1885)
• SHAW, LEMUEL (1781–1861)
• SHAW, RICHARD NORMAN (1831– )

752), while if the creditor has already proved, the surety who has paid the guaranteed debt has a right to all dividends received by the creditor from the bankrupt in respect thereof, and to stand in the creditor's place as to future dividends. This right is, however, often waived by the guarantee stipulating that, until the creditor has received full payment of all sums over and above the guaranteed debt, due to him from the principal debtor, the surety shall not participate in any dividends distributed from the bankrupt's estate amongst his creditors. As regards the rights of the surety against the creditor, they.are in England exercisable even by one who in the first instance was a principal debtor, but has since become a surety, by arrangement with his creditor, duly notified to the creditor, though not even sanctioned by him. This was decided. by the See also:

• HOUSE
• HOUSE (O. Eng. hiss, a word common to Teutonic languages, cf. Dut. huis, Ger. Haus; in Gothic it is only found in gudhiss, a temple; it may be ultimately connected with the root of " hide," conceal)

On this subject the Mercantile Law Amendment Act, 1856, § 5, provides that " every person who being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security, which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty; and such payment or performance so made by such surety shall not be pleadable in See also:

• BAR
• BAR (0. Fr. barre, Late Lat. barra, origin unknown)
• BAR, CONFEDERATION OF
• BAR, FRANCOIS DE (1538-1606)
• BAR, THE

Gullick, 1893, 2 Ch. 514); and the amount recoverable is now always regulated by the number of solvent sureties, though formerly this rule only prevailed in equity. In the event of the bankruptcy of a surety, proof can be made against his estate by a co-surety for any excess over the latter's contributive share. The right of contribution is not the only right possessed by co-sureties against each other, but they are also entitled to the benefit of all securities which have been taken by any one of them as an indemnity against the liability incurred for the principal debtor. The Roman law did not recognize the right of contribution amongst sureties. It is, however, sanctioned by many existing codes (Fr. and Bel. 2033; Germany, 426,474; Italy, 1920; Holland, 1881; Spain, 1844; Port. 845; Lower Canada, 1955; Egypt [mixed suits], 618, ibid. [native tribunals], 506), and also by the Indian Contract Act 1872, SS. 146-147. The discharge of a surety from liability under his guarantee Rights of who may have become co-sureties in respect of the sureties. may be accompiished in various ways, he being regarded, especially in England and America, as a " favoured debtor " (per See also:

• TURNER, CHARLES (1773–1857)
• TURNER, JOSEPH MALLORD WILLIAM (1775–1851)
• TURNER, NAT (1800-1831)
• TURNER, SHARON (1768-1847)
• TURNER, SIR JAMES (1615–1686)
• TURNER, WILLIAM (d. 1568)

Bastow, 7 De G. M. & G. 279, 28o; per Earl of Selborne, L.C., in In re See also:

• SHERRY

See also:

• LEWIS, HENRY CARVILL
• LEWIS, JOHN FREDERICK (180 1876)
• LEWIS, MATTHEW GREGORY (1775-1818)
• LEWIS, MERIWETHER (1774-1809)
• LEWIS, SIR GEORGE CORNEWALL, BART

[native tribunals], 503); and see Morice, English and Dutch Law, p. 96; van der Linden, Institutes of Holland, pp. 120-121). A revocation of the contract of suretyship by act of the parties, or in certain cases by the death of the surety, may also operate to discharge the surety. The death of a surety does not per se determine the guarantee, but, save where from its nature the guarantee is irrevocable by the surety himself, it can be revoked by express notice after his death, or, it would appear, by the creditor becoming affected with constructive notice thereof; except where, under the testator's will, the executor has the See also:

• OPTION (Lat. optio, choice, choosing, optare, to choose)