Hence, if there were many Sureties, and one or more of them prove
incapable of answering the engagement, the burthen of the Debt shall
fall upon the others, either entirely, or to the extent of the
Deficiency. But if, in becoming sureties for a person indebted, the
Pledges assumed the responsibility of certain parts only, whatever may
happen as to some of the Pledges, the others shall not be compelled
to answer, except for their own proportion. From this it is evident
that a dispute may sometimes arise between the Creditor and the
Pledges—sometimes between the Pledges themselves, if any one of them
should allege that he had become the surety of the principal Debtor
for a less sum, whilst, on the other hand, it is asserted that he
became so for a greater. For when the Pledges are individually bound
for certain parts, it follows of necessity, that the Creditor himself
must sue the one, who confesses to owe less upon his undertaking than
he ought. But, should some of them become Pledges for the whole, some
for certain parts, then, indeed, it will be requisite, that those who
have become sureties for the whole should sue those who will only
confess themselves indebted in a less sum than they really owe. How
these different points are to be proved, will be seen in the sequel.
The Sureties, having discharged the Debt, may have recourse to the
principal Debtor, should he afterwards acquire sufficient to repay
them; and this by an original Action of Debt, of which we shall
presently speak. It should, however, be observed, that if a Man has
become a Pledge for another’s appearance, and he should, in consequence
of the default of his Principal, happen to be amerced, and in respect
of it pay any sum, he cannot afterwards on this account recover any
thing against him for whom he became Surety.[377] Whoever, indeed, has
become a Pledge for another’s appearance in any suit that belongs to
the King’s Crown, as, concerning the breaking of the King’s peace,
or otherwise, if he do not produce his Principal, he shall, as a
consequence of his suretyship, be amerced to the King, of the nature of
which we spoke on a former occasion. But the effect of this will be to
liberate him from his suretyship.
[Footnote 377: The Regiam Majestatem, on the contrary, lays it down,
that he can recover, (L. 3. c. 1.)—a rule that is certainly more
consistent with Justice. On the other hand, the Mirror coincides with
the text. (c. 2. s. 24.)]
Should, however, the Pledges deny in Court their Suretyship, then, if
there were many Pledges, either all of them will deny such suretyship,
or some will admit, and some deny it. But, if some admit, and some deny
it, then, there may be a Suit, as well between the Creditor himself and
the Pledges, as between those Pledges who confess, and those who deny
their engagement, according to what we have previously observed.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account