Read the Introduction
Solomon watched a man do it, and he told his son what he had seen. A young man stands at a counter with a friend beside him, and the friend needs a name on a paper. Out comes the pen, down comes the hand, and the whole thing is finished in a moment that costs the signer nothing he can feel and commits him to everything he has. Scripture names the act by what the body does rather than by what the paper is. My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, Thou art snared with the words of thy mouth, thou art taken with the words of thy mouth. (Proverbs 6:1-2, KJV 1769)
Nothing in that passage treats the gesture as unreal, and nothing in it treats the snare as hopeless either. The father keeps talking, and the sentence he speaks next is the first instruction in the book. Do this now, my son, and deliver thyself, when thou art come into the hand of thy friend; go, humble thyself, and make sure thy friend. Give not sleep to thine eyes, nor slumber to thine eyelids. Deliver thyself as a roe from the hand of the hunter, and as a bird from the hand of the fowler. (Proverbs 6:3-5) The snare is woven out of the man's own words, and his own words are the one part of the transaction that can be read, and a thing that can be read can be answered.
Every instrument signed by a natural person is a striking of hands with somebody. A promissory note, a guaranty, an indemnity agreement, a joinder in the obligation of another, a personal guarantee bound into the back of a lease, a bond given to an office as the price of holding it; the papers differ and the gesture does not. What a signature buys is liability to another party for a performance, and the liability is measured by the words standing over the name. That is the whole subject of this book, and the record treats it from two directions at once, so the book does the same.
The first direction is the law of suretyship itself, taken from the American treatise that worked the subject at the greatest length in its generation. Official Bonds and Other Bonds on Condition was written by William L. Murfree, Sr., of the St. Louis bar, and printed in 1886. It runs twenty-one chapters and something on the order of eight hundred numbered sections, and the last three of those chapters take up the liability of sureties on official bonds, the strict construction of their undertakings, and the grounds on which a surety is discharged.
The second direction is the Proverbs, which name the act, warn against it, price it, and hand the man a way out of it. Holding the two directions side by side is the method of this book, and the reason for the method shows itself the moment they are laid together. The treatise never quotes scripture, and the Proverbs never cite a case. One speaks in the register of the courtroom and the other in the register of the household, and both arrive at the same rule from opposite ends of the record.
That rule carries a name in the treatise. Chapter XX is titled "The Strictissimi Juris Rule," and it runs sections 710 through 736 at printed pages 490 to 511. Its fullest statement stands at section 724, and it is the sentence this book is built on: "the well established principle that the liability of sureties upon their bond, is not to be extended by implication beyond the terms of their contract." (Section 724, page 504.) The same chapter gives the rule in more general terms a few pages earlier and calls it settled to the point of being axiomatic (page 491, on the construction of a surety's liability by the language of his bond). Outside that chapter the book states it once more, in the section that forbids general words to enlarge a specific undertaking, where the rule is that the liability of a surety on an official bond cannot be extended by general words so as to include other duties than those described by the particular and specific language of the bond, general terms being controlled by the specific language used in the same connection (section 666).
The direction the rule travels matters as much as the words of it, and the treatise is careful about the direction. A subsequent enlargement of the officer's territorial jurisdiction, or a change in the general nature or functions of his office, can end the surety's exposure altogether (page 495, section 714). No change of any other kind enlarges it. The rule moves one way only, and its maxim is the one that explains why: Cessante ratione legis, cessat ipsa lex, the reason of the law ceasing, the law itself ceases (COKE, LITT. 70 b.). A bond written to secure one duty has nothing left to stand on once that duty has been altered, and the surety goes out the same door the reason went out.
Chapter XXI turns the same lens on the ending of the relationship, under the title "What will Discharge Sureties on Official Bonds," sections 745 through 803 at pages 512 to 555. Its list of what discharges is a closed one, being alteration of the instrument, an extension of time given to the principal, concealment or fraud on the part of the obligee, the acceptance of part performance, the release of one co-surety, the death of the principal on a bastardy bond, and a judicial declaration that the principal is blameless. Equally useful is the other column, what does not discharge: mere delay, laches, late notice, the obligee's own negligent bookkeeping, a mistake made in the settlement of accounts, and a cancellation entered by somebody with no authority to enter it. Alongside those lists stands a limit the treatise states plainly, that the surety is a volunteer as to the obligee (section 754), which is why the strict construction belongs to him in the first place and why it is not a universal answer to every claim ever brought against a signature.
Every maxim cited in these pages carries its own authority line, because a maxim quoted without its authority is a slogan rather than law. The words of a deed are taken most strongly against the party offering it, Verba chartarum fortius accipiuntur contra proferentem (COKE, LITT. 36 a.), which is the whole rule stated as a maxim; the expression of one thing is the exclusion of another, Expressio unius est exclusio alterius (COKE, LITT. 210 a.), which amounts to saying that nothing is added by implication; a naked agreement creates no obligation, Nudum pactum (Plowd. 309; Broom, Max. 745, 750; Dig. 2, 14, 7, 4), which is the maxim for the man who signed and took nothing for it; and the principal is to be pursued before the surety is reached, Principalis debet semper executari antequam perveniatur ad fidejussores (2 INST.), with the surety answering only for the sum he actually agreed to answer for, In veram quantitatem fidejussor teneatur nisi pro certa quantitate accessit (17 MASS.). Taken together these are not decoration. Each one is the rule in its oldest and shortest form, and each has been used in a courtroom to do work.
An honest reading of a rule is worth more when it ends in an instrument rather than in a grievance, and this book ends in one. A house or a person who intends never to occupy the position at all does not need to argue about the interpretation of a bond, because the argument only matters after the hands have been struck. The no-surety clause closes the question before it opens. It is written to sit in the charter or declaration, in the operating rules, and in the indenture, and it says that the House shall not become surety, guarantor, accommodation party, or endorser for the debt or default of any other person, that no officer, trustee, or member shall pledge or encumber the property of the House for the debt of another without the written consent of the beneficiary or owner of record, and that no signature shall be given upon any instrument of the House except in an office expressly named in the designation of signatories, with the capacity written on the face of the instrument beneath the signature. The clause is entered in the master clause library as the next free number when the houses are drafted, and until it is entered no chapter in this book cites it by a clause number. Beneath the clause sits the modern statutory line on the same idea, carried in chapter three and chapter nine and in the closing chapter here, because a capacity stated on the face of the paper is what keeps a signature given for a trust from attaching to the man who gave it. The modern line is stated the way a book written for the whole country has to state it: the sections are cited from the uniform code, and the direction that comes with them is to read your own state's enactment of the same section, since the code is a uniform act each state adopts as its own law and not a federal statute. South Carolina appears in those chapters as the labeled illustration and not as the rule.
Three cautions travel with the method, and they belong at the front rather than at the end.
The first is that this is old law, honestly labeled. Every statute and every case quoted in these pages is material of the 1870s and 1880s, the latest state codes the treatise cites are the Alabama Code of 1876 and the Illinois statutes of 1878, and the federal statutes it uses were reworked many times afterward. State statutes on official bonds, on the limitation of actions against sureties, and on the liability of a surety for duties imposed on an officer by later legislation have been amended, repealed, and superseded repeatedly since. Nothing in this book claims present-day effect from those pages, and any chapter that states the rule sends the reader to the statute governing the officer's bond in the jurisdiction where the bond is taken, and to the condition written on the face of the bond itself.
The second caution is the boundary of the rule, and it is stated early on purpose. Strict construction of the undertaking is the shield of the surety who volunteers and receives nothing for his undertaking. A compensated corporate surety, an insurer writing a bond for a fee, is generally held to the ordinary rules of contract construction. Official bonds today are governed by statute, state and federal, rather than by the common-law rule standing alone. So the rule is a starting point and a shield for the volunteer, and it is not a universal answer. The Proverbs do not depend on the statute. The rule does.
A third caution concerns the text itself. Where the volume's own type is damaged at a point this book quotes, the damaged reading is given and the true word restored, as chapter eighteen does with the rule's own Latin name. Every quotation from the volume carries its own page or section beside it, and any quotation intended for a filing should be read against a printed copy of the volume first. The treatise is also an editorialist, and where it calls a ruling gross judicial legislation or says a distinction is without warrant in law, this book names that as the author's opinion and not as a rule.
What this book will not do is worth saying plainly as well. It will not tell anyone that a debt has been paid, that a lien has been released, or that a signature already given can be made to vanish by a later paper. What is past is answered on the record, by the discharge the lender itself files, by the accounting demanded, and by the chain of title, and what is yet to come is answered on the face of the paper before the pen ever touches it. The rule of this book operates on the instrument, and the instrument is where it stops.
Be not thou one of them that strike hands, or of them that are sureties for debts. If thou hast nothing to pay, why should he take away thy bed from under thee? (Proverbs 22:26-27, KJV 1769)
A father asked that question three thousand years ago, and it has never been answered by the man holding the paper. The answer has always had to come from the other side of the counter, from the terms actually written, from the statute actually in force, and from the position a man either took or refused to take. What follows takes up that work in order: the hand, the instrument, the office, and the rule.