CHAP. IV.
“The King to the Sheriff, Health. Command N., that justly and without delay, he acquit R. of the Hundred Marks against N., for which he became his surety, as he says, and of which he complains he has not acquitted him. And, unless he does so, summon him, by good Summoners, &c.”
CHAP. V.
When the Pledges appear in Court, they will either confess their Suretyship, or they will deny it. Should they adopt the former course, they are then bound[376] to satisfy the Creditor, at a convenient time appointed in Court for such purpose; or they are bound in a legal manner to prove, that they are discharged from such suretyship by payment, or by some other lawful means. But, if there are many Pledges, each of them is answerable for the whole Debt, unless it was otherwise stipulated when they became Sureties; and they are all to be distrained to satisfy the Debt.
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.
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.
But, what shall be the proof required of those, between whom the suit is to be conducted, is a question? Whether, for example, it should be made by the Duel, or by any other mode; or whether the Pledges can, by the oaths of such a number of men as the Court may require, deny their undertaking? With respect to this point, some persons assert, that the Creditor himself, by his own oath and that of lawful Witnesses, can by Law prove it against the Pledges, unless the Pledges will prevent him from the oath; and this may now be done when the Demandant appears prepared to take the oath, though formerly it ought to have been done before the Law was waged.
Thus in such case the Duel may be resorted to.