against his acceptance under the circumstances of the particular case. SECTION 13. INFANTS AS SURETIES. Since the rule of law has been changed, so that the accepted understanding is, that an infant's express contracts are to be now considered as voidable, and not void contracts, it may be said that the courts for the most part are inclined to agree that the infant's contract of suretyship is voidable, and not void, unles the contract would necessarily operate to unduly prejudice the rights of the infant. It remains therefore with the infant in the case of contracts of an uncertain nature to exercise his election, of avoiding the contract if he sees fit.' In Harner vs. Dipple,2 the court says: "This immunity to infants (the right to avoid the contract), is intended for their protection against imposition and imprudence and is continued after their majority as a mere personal privilege * * whenever he the (infant) arrives at majority * **the law presumes that he has acquired all the wisdom and prudence necessary for the proper management of his affairs; hence the law imposes on him full responsibility for all his acts and contracts." An infant therefore who ratifies his contract of suretyship after reaching his majority with a full knowledge of the fact that he was not bound on the original contract, will be bound by his ratification. It may be added here that infancy of the principal debtor, would be no defense to the liability of an adult surety." SECTION 14. MARRIED WOMEN AS SURETIES. The common law rule was that a married woman could make no contracts, except where she contracted in reference to her own separate estate. As it was the usual rule that her fortune or estate vested in the husband, her contracts as a surety were held invalid. By rule of statute, the married woman is enabled now, to retain and control her own property and hence may make all contracts including the contract of suretyship, the same as if unmarried. The statutes of the different states are of course not exactly uniform, but the married woman's disability to contract has for the most part, been removed, but where the enabling act has not been passed they cannot properly become a surety or grantor.5 In Georgia and in some other states, a married woman where she binds her separate estate is forbidden to enter into a contract as surety for another, even though that other be her husband, and the debt be one, in part to obtain goods for the family." SECTION 15. INSANE PERSON AS SURETY. One who is of unsound mind, cannot bind himself upon a contract of suretyship, even though the creditor acted in good faith in entering into the contract, and was not aware of the fact of insanity in the surety." A more difficult question as to liability, has been presented to the courts, in the case where the principal debtor is a lunatic, and one becomes surety on the lunatic's contract, the question being, can the surety be held. The question is answered in the Low Bros. & Co. vs. Anderson, 41 Iowa, 476. Gosmar vs. Cruger, 69 N. Y., 87. Vol. IX.-10. • Smith vs. Hardman, 99 Ga., 38. 1 Vau Patton & Marks vs. Beals, & H., 46 Iowa, 62 affirmative, the grounds for the decision being the same as given in the case of the holding a surety liable on his contract to answer for debt of a married woman. It being assumed that the surety knew of the disability of the principal debtor, and to have made his contract with that fact in mind, and the surety being himself competent to contract, is bound. SECTION 16. PARTNERSHIPS AND CORPORATIONS AS SURETIES. A partnership is a proper promissor in a contract of suretyship, provided the contract comes within the scope of the business of the partnership, or is expressly joined in, by all the members of the partnership firm for a partnership purpose. Where the contract is not within the scope of the firm's business, one partner has no implied power to bind the firm. But the firm itself may change the scope of the business. A partner acting without express or implied authority would bind himself alone. A corporation's right to become a surety is regulated by the powers granted to it in the charter, or where the making of the contract would be necessary to properly carry out the express purposes of its creation.10 The power of a state or national bank to act as surety is regulated by the language of the statute under which they are organized. Under the National Banking Act, there is given the implied power to National Banks to act as a surety, whenever it becomes necessary for the bank to so act in negotiating its paper." 11 Lee vs. Yandell, 69 Texas, 34. • Osborn vs. Stone, 30 Minn., 25; Avery vs. Rowell, 59 Miss, 82. 10 Arnot vs. Erie Ry. Co., 67 N. Y., 315. "Peoples Bank vs. National Bank, 101 U. S., 183. SECTION 17. ATTORNEYS-AT-LAW AS SURETIES. 12 Sometimes by statute, an attorney-at-law may be prohibited from acting as a surety or signing a bond as surety for his client, but the disability simply goes to the penalty, usually, for the violation of the statute, and under the principle of estoppel the surety is held liable on his obligation as assumed, if notwithstanding the statute, his bond is accepted. And the fact that such a surety is held liable on the bond, would not relieve him from his offense of breaking the rule of the statute, and he would still be liable to answer to the courts for his wrong. The rule prohibiting such a person from acting as a surety is founded on the principles of public policy; the punishment would be by fine, or punishment as for contempt of court. A statute, the provisions of which state, that an attorney shall not be received as bail in a criminal case, is held to be directory only. The attorney who signs such a bond and is received as the surety in such a case, would be bound on the contract.13 He will not be permitted afterward to plead his incapacity, as a defense to the suit on the bond. SECTION 18. SURETY UNDER DURESS. Following the general rule of contract law, duress avoids the contract, where a surety becomes such by reason of being compelled to sign under duress. It is the better rule too, that duress practiced on the principal debtor alone will relieve the surety, as well as the debtor himself, in the case where the surety is ignorant of the true conditions existing between the principal debtor and the creditor." Where the surety State vs. Findley, 101 Mo., 368. wealth, 11 Bush., 617. 14 Peacock et al. vs. People, 23 Ill., 331. signs with full knowledge of the duress, he cannot then, on the ground of the duress, escape liability on the contract. The argument usually advanced is, that if the principal contract is invalid, then the contract of the surety, which exists by reason of the principal's contract, is likewise invalid. But duress makes the contract voidable only, and not void. SECTION 19. FRAUD IN THE CONTRACT. 15 Fraud practiced on the surety by the creditor, will make the contract voidable, so fraud practiced on the surety by the principal debtor with the knowledge of the creditor will likewise avoid the contract," as concealment of the principal's fraud by the creditor, would amount to a fraud on the surety, and it would be a violation of the duty of good faith owing from the creditor to the surety, but if the principal debtor practices a fraud on the surety, of which the creditor has no knowledge even though this is the thing that induces the surety to make the contract, the surety will not on that account be released from liability to the creditor.10 The courts are particularly severe in enforcing the rule, on the creditor, in reference to his exercising good faith in informing the prospective surety of the true facts in connection with the contract, so far as they deem good faith requires him to inform the surety. Fraud, Fraud, deceit or concealment, amounting to fraud, will avoid the contract." SECTION 20. GUARANTY AND SURETY COMPANIES. A great part of the surety business is now sought for and managed by incorporated companies, and 15 Waterbury vs. Andrews, 67 Mich., 281. 16 Casoni vs. Jerome, 58 N. Y., 315. "Doughty vs. Savage, 28 Conn., 146; Sooy vs. State, 39 N. J. Law, 135. |