SUPREME. That which is superior to all other things; as the supreme
power of the state, which is an authority over all others. The supreme court,
which is superior to all other courts.
SUPREME COURT. The court of the highest jurisdiction in the United
States, having appellate jurisdiction over all the other courts of the United.
States, is so called. Its powers are examined under the article Courts of the
2. The following list of the judges who have had seats on the bench of this
court is given for the purpose of reference.
Chief Justices. John Jay, appointed September 26, 1789, resigned in 1795.
John Rutledge, appointed July 1, 1795, resigned in 1796.
Oliver Ellsworth, appointed March 4, 1796, resigned in 1801.
John Marshall, appointed January 31, 1801, died July 6, 1835.
Roger B. Taney, appointed March 15, 1836. Associate Justices.
William Cushing, appointed September 27, 1789, died in 1811.
James Wilson, appoiuted September 29, 1789, died in 1798.
John Blair, appointed September 30, 1789, died in 1796.
James Iredell, appointed February 10, 1790, died in 1799.
Thomas Johnson, appointed November 7, 1791, resigned in 1793.
William Patterson, appointed March 4, 1793, in the place of Judge Johnson,
died in 1806.
Samuel Chase, appointed January 7, 1796, in the place of Judge Blair, died in
Bushrod Washington, appointed December 20,1798, in the place of Judge Wilson,
died November 26, 1829.
Alfred Moore, appointed December 10, 1799 in the place of Judge Iredell,
resigned in 1864.
William Johnson, appointed March 6, 1804, in the place of Judge Moore, died
Brockholst Livingston, appointed November 10, 1806, in the place of Judge
Patterson, died in 1823.
Thomas Todd, appointed March 3, 1807, under the act of congress of February,
1807, providing for an additional justice, died in 1826.
Gabriel Duval, appointed November 18, 1811, in the place of Judge Chase,
resigned in January, 1835.
Joseph Story, appointed November 18, 1811, in the place of Judge Cushing.
Smith Thompson, appointed December 9, 1823, in the place of, Judge Livingston,
Robert Trimble, appointed May 9, 1826, in the place of Judge Todd, died in
John McLean, appointed March 1829, in the place of Judge Trimble, deceased.
Henry Baldwin, appointed January 1830, in the place of Judge Washington,
James M. Wayne, appointed January 9, 1835, in the place of Judge Johnson,
Philip P. Barbour, appointed March 15, 1836, died February 25,1841.
John Catron, appointed March 8, 1837, under the act of congress providing for
two additional judges.
John McKinley, appointed September 25, 1837, under the last mentioned act.
Peter V. Daniel, appointed March 3, 1841, in the place of Judge Barbour,
Samuel Nelson, appointed February 14, 1845, in the place of Judge Thompson,
Levi Woodbury, appointed September 20, 1845, in the recess of senate, in the
place of Judge Story, deceased: his nomination confirmed January 3, 1846.
Robert C. Grier, appointed August 4, 1846, in the place of Judge Baldwin,
Benj. Robbins Curtis, appointed 1851, in the recess of the senate, in the
place of Judge Woodbury, deceased: his nomination confirmed
The present judges of the supreme court are,
Chief Justice. Roger B. Taney. Associate Justices. John McLean, James M.
Wayne, John Catron, John McKinley, Peter V. Daniel, Samuel Nelson, Robert C.
Grier, and B. Robbins Curtis.
3. In the several states there are also supreme courts; their powers aud
jurisdiction will be found under the names of the several states.
SUR. A French word which signifies upon, on. It is very frequently used in
connexion with other words as, sur rule to take deposition, sur trover and
conversion, and the like.
SUR CUI ANTE DIVORTIUM. The name of a writ issued in favor of the heir
of the wife, where the hushand alienated the wife's lands, during the coverture,
and afterwards they were divorced and she died, to recover the lands from the
alienee. Vide Cui ante divortium.
SURCHARGE, chancery practice. When a bill is filed to open an account,
stated, liberty is sometimes given to the plaintiff to surcharge and falsify
such account. That is, to examine not only errors of fact, but errors of law. 2
Atk. 112; 11 Wheat. 237; 2 Ves. 565.
2. "These terms, `surcharge,' and `falsify,'" says Mr. Justice Story, 1 Eq.
Jur. §525, "have a distinct sense in the vocabulary of courts of equity, a
little removed from that, which they bear in the ordinary language of common
life. In the language of common life, we understand `surcharge' to import an
overcharge in quantity, or price, or degree, beyond what is just and reasonable.
In this sense, it is nearly equivalent to `falsify;' for every item, which is
not truly charged, as it should be, is false; and by establishing such
overcharge it is falsified. But, in the sense of courts of equity, these words
are used in contradistinction to each other. A surcharge is appropriately
applied to the balance of the whole account; and supposes credits to be omitted,
which ought to be allowed. A falsification applies to some item in the debets;
and supposes, that the item is wholly false, or in some part erroneous. This
distinction is taken notice of by Lord Hardwicke; and the words used by him are
so clear, that they supersede all necessity for farther commentary. `Upon a
liberty to the plaintiff to surcharge, and falsify,' says he, `the onus probandi
is always on the party having that liberty; for the court takes it as a stated
account, and establishes it. But, if any of the parties can show an omission,
for which credit ought to be, that is, a surcharge, or if anything is inserted,
that is a wrong charge, he is at liberty to show it, aud that is a
falsification. But that must be by proof on his side. And that makes a great
difference between the general cases of an open account, and were only [leave]
to surcharge and falsify; for such must be made out."
SURETY, contracts. A person who binds himself for the payment of a sum
of money or for the performance of something else, for another, who is already
bound for the same. A surety differs from a guarantor, and the latter cannot be
sued until after a suit against the principal. 10 Watts, 258.
2. The surety differs from bail in this, that the latter actually has, or is
by law presumed to have, the custody of his principal, while the former has no
control over him. The bail may surrender his principal in discharge of his
obligation; the surety cannot be discharged by such surrender.
3. In Pennsylvania it has been decided that the creditor is bound to sue the
principal when requested by the surety, and the debt is due; and that when
proper notice is given by the surety that unless the principal be sued, be will
consider himself discharged, he will be so considered, unless the principal be
sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P. in Alabama,
9 Porter, R. 409. But in general a creditor may resort to the surety for the
payment of his debt in the first place, without applying to the principal. 1
Watts, 28O; 7 Ham. part 1, 223. Vide Bouv. Inst. Index, h. t.; Contribution;
SURETY OF THE PEACE, crim. law. A security entered into before. Some
competent court or officer, by a party accused, together with some other person,
in the form of recognizance to the commonwealth in a certain sum of money, with,
a condition that the accused shall keep the peace towards all the citizens of
the commonwealth. A security for good behaviour is a similar recognizance with a
condition that the accused shall be of good behaviour.
2. This security may be demanded by a court or officer having jurisdiction
from all persons who threatened to kill or to, injure others, or who by their
acts give reason to believe they will commit a breach of the peace. And even
after an acquittal a prisoner may be required to give scourity of the peace or
good behaviour, when the circumstances of the case justify a court in believing
the public good requires it. 2 Yeates, R. 437 Bac. Ab. h. t.; 1 Binn. R. 98,
note; Com. Dig. h. t.; Yin. Ab. h. t.; Bl. Com. B. 4, c. 18, p. 251.
3. To obtain surety to keep the peace, the party requiring it must swear or
affirm be fears a present or future danger, and not merely swear or affirm to a
breach of the peace which is past; it is usual, however, to state such injuries,
and when the circumstances warrant it, a threat of their repetition, as a
legitimate ground for fearing future injury, which fear must always be stated. 1
Chit. Pr. 677.
4. A recognizance to keep the peace is forfeited only by an actual attack or
threat of bodily harm, or burning a house, and the like, but not by bare words
Of h an choler. Hawk. h. 1, c. 60, s. 2. Vide Good Behaviour.
SURETYSHIP, contracts. An accessory agreement by which a person binds
himself for another already bound, either in whole or in part, as for his debt,
default or miscarriage.
2. The person undertaken for must be liable as well as the person giving the
promise, for otherwise the promise would be a principal and not a collateral
agreement, and the promissor would be liable in the first instanee; for example,
a married woman would. Not be liable upon her contract, and the person who
should become surety for her that she would perform it would be responsi-ble as
a principal and not as a surety. Pitm. on P. & S. 13; Burge on Sur. 6; Poth.
Ob. n. 306. If a Person undertakes as a surety when he knows the obligation, of
the principal is void, he becomes a principal: 2 Id. Raym. 1066; 1 Burr. 373.
3. As the contract of suretyship must relate to the same subject as the
principal obligation, it follows that it must not be of greater extent or more
onerous' either in its amount, or in the time or manner, or place of
performance, than such principal obligation; and if it so exceed, ii will be
void, as to such excess. But the obligation of the surety may be less onerous,
both in its amount, and in the time, place and manner of its performance, that
of the principal debtor; it may be for a less amount, or the time may be more
protracted. Burge, on Sur. 4, 5.
4. The contract of suretyship may be entered into by all persons who are sui
juris, and capable of entering into other contracts. See Parties to contracts.
5. It must be made upon a sufficient consideration. See Consideration.
6. The contract of suretyship or guaranty, requires a present agreement
between the contracting parties; and care must be taken to observe the
distinction between an actual guaranty, and an offer to guaranty at a future
time; when an offer is made, it must be accepted before it becomes binding. 1 M.
& S. 557; 2 Stark. 371; Cr. M. & Ros. 692.
7. Where the statute of frauds, 29 Car. II., c. 3, is in force, or its
principles have been adopted, the contract of suretyship "to answer for the
debt, default or miscarriage of another person," must be in writing, &c.
8. The contract of suretyship is discharged and becomes extinct, 1st. Either
by the terms of the contract itself. 2d. By the acts to which both the credi-tor
and principal alone are parties. 3d. By the acts of the creditor and sure-ties.
4th. By fraud. 5th. By operation of law.
9. - §1. When by his contract the surety limits the period of time for which
he is willing to be responsible, it is clear he cannot be beld liable for a
longer period; as when he engages that an officer who is elected annually shall
faithfully perform his duty during his continuance in office; his obligation
does not extend for the performance of his duty by the same officer who may be
elected for a second year. Burge on Sur. 63, 113; 1 McCord, 41; 2 Campb. 39; 3
Ad. & Ell. N. S. 276; 2 Saund. 411 a; 6 East, 512; 2 M. & S. 370; New R.
(5 B. & P.) 180; 2 M. & S. 363; 9 Moore, 102.
10. - §2. The contract of suretyship becomes extinct or discharged by the
acts of the principal and of the creditor without any act of the surety. This
may be done, 1. By payment, by the principal. 2. By release of the principal. 3.
By tender made by principal to the creditor. 4. By compromise. 5. By accord and
satisfaction. 6. By novation. 7. By delegation. 8. By set-off. 9. By alteration
of the contract.
11. - 1. When the principal makes payment, the sureties are immediately dis-
charged, because the obligation no longer exists. But as payment is the act of
two parties, the party tendering the debt and the party receiving it, the money
or thing due must be accepted. 7 Pick 88; 4 Pick. 83; 8 Pick. 122. See Payment.
12. - 2. As the release of the principal discharges the obligation, the
surety is also discharged by it.
13. - 3. A lawful tender made by the principal or his authorized agent, to
the creditor or his authorized agent, will discharge the surety. See. 2 Blackf.
87; 1 Rawle, 408; 2 Fairf. 475; 13 Pet. 136.
14. - 4. When the creditor and principal make a compromise by which the
principal is discharged, the surety is also discharged. 11 Ves. 420; 3 Bro. C.
C. 1; Addis. on Contr. 443.
15. - 5. Accord and satisfaction between the principal and the creditor will
discharge the surety, as by that the whole obligation becomes extinct. See
Accord and satisfaction.
16. - 6. It is evident that a simple novation, or the making a new contract
and annulling the old, must, by the destruction of the obligation, discharge the
17. - 7. An absolute delegation, where the principal procures another person
to assume the payment upon condition that he shall be discharged, will have the
effect to discharge the surety. See Delegation.
18. - 8. When the principal has a just set-off to the whole claim of the
creditor, the surety is discharged.
19. - 9. If the principal and creditor change the nature of the contract, so
that it is no longer the same, the surety will be discharged; and even extending
the time of payment, without the consent of the surety, when the agreement to
give time is founded upon a valuable consideration, is such an alteration of the
contract as discharges the surety. See Giving Time.
20. - §3. The contract is discharged by the acts of the creditor and surety,
1. By payment made by the surety. 2. By release of the surety by the creditor.
3. By compromise between them. 4. By accord and satisfaction. 5. By set off.
21. - §4. Fraud by the creditor in relation to the obligation of the surety,
or by the debtor with the knowledge or assent of the creditor, will discharge
the liability of the surety. 3 B. & C. 605; S. C. 6 Dowl. & Ry. 505; 6
Bing. N. C. 142.
22. - §5. The contract of suretyship is discharged by operation of law, 1. By
confusion. - 2. prescription, or the act of limitations. 3. By bankruptcy.
23. - 1. The contract of suretyship is discharged by confusion or merger of
rights; as, where the obligee marries the obligor. Burge on Sur. 256; 2 Ves. p.
264; 1 Salk. 306; Cro. Car. 551.
24. - 2. The act of limitations or prescription is a perfect bar to a
recovery against a surety, after a sufficient lapse of time, when the creditor
was sui juris and of a capacity to sue.
25. - 3. The discharge of the surety under the bankrupt laws, will put an end
to his liability, unless otherwise provided for in the law.
26. The surety has the right to pay and discharge the obligation the moment
the principal is in default, and have immediate recourse to his principal. He
need not wait for the commencement of an action, or the issue of legal process,
but he cannot accelerate the liability of the principal, and if he pays money
voluntarily before the time of payment arrives, he will have no cause of action
until such time, or if he pays after the principal obligation has been
discharged, when he was under no obligation to pay, he has no ground of action,.
27. Co-sureties are in general bound in solido to pay the debt, when the
principal fails, and if one be compelled to pay the whole, he may demand
contribution from the rest, and recover from them their several proportions of
their common liability in an action for money paid by him to their use. 6 Ves.
807; 12 M. & W. 421 8 M. & W. 589; 4 Scott, N. S. 429. See, generally,
15 East, R. 617; Yelv. 47 n.; 20 Vin. Ab. 101; 1 Supp. to Ves. jr. 220, 498, 9;
Ayliffe's Pand. 559; Poth. Obl. part 2, c. 6; 1 Bell's Com. 350, 5th ed.;
Git-ing time; Principal; Surety.
SURGERY, med. jur. That part of the healing art which relates to
external diseases; their treatment; and, specially, to the manual operations
adopted for their cure.
2. Every lawyer should have some acquaintance with surgery; his knowledge on
this subject will be found useful in cases of homicide and wounds.
SURNAME. A name which is added to the christian name, and which, in
modern times, have become family names.
2. They are called surnames, because originally they were written over the
name in judicial writings and contracts. They were and are still used for the
purpose of distinguishing persons of the same name. They were taken from
something attached to the persons assuming them, as John Carpenter, Joseph
Black, Samuel Little, &c. See Name.
SURPLUS. That which is left from a fund which has been appropriated
for a particular purpose; the remainder of a thing; the overplus the residue.
(q. v.) See 18 Ves. 466.
2. The following is an example of a surplus; if a thing be put in pledge as a
security to pay one hundred dollars, and it be afterwards sold for one hundred
and fifty dollars, the fifty dollars will be the surplus. Wolff, Inst. §697. See
SURPLUSAGE, pleading. A superfluous and useless statement of matter
wholly foreign and impertinent to the cause.
2. In general surplusagium non nocet, according to the maxim utile per
inutile non vitiatur; therefore if a man in his declaration, plea, &c., make
mention of a thing which need, not be stated, but the matter set forth is
grammatically right, and perfectly sensible, no advantage can be taken on
demurrer. Com. Dig. Pleader, C 28, E 2; 1 Salk. 325; 4 East, 400; Gilb. C. P.
131; Bac. Ab. Pleas, 1, 4; Co. Litt. 303, b; 2 Saund. 306, n. 14; 5 East 444; 1
Chit. Pl. 282; Lawes on Pl. 63; 7 John. 462; 3 Day, 472; 2 Mass. R. 283; 13
3. When, by an unnecessary allegation the plaintiff shows he has no cause of
action, the defendant may demur. Com. Dig. Pleader, c. 29; Bac. Ab. Pleas, 1, 4;
see 2 East, 451; 4 East, 400; Dougl. 667; 2 Bl. Rep. 842; 3 Cranch, 193; 2 Dall.
300; 1 Wash. R. 257.
4. When the surplusage is not grammatically set right, or it is
unintelligible and, no sense at all can be given it, or it be contradictory or
repugnant to what is before alleged, the adversary may take advantage of it on
special demurrer. Gilb. C. P. 132; Lewes on Pl. 64.
5. When a party alleges a material matter with an unnecessary detail of
circumstances, and the essential and non-essential parts of a statement are, in
their nature, so connected as to be incapable of separation, the opposite party
may include under his traverse the whole matter alleged. And as it is an
established rule that the evidence must correspond with the allegations, it
follows that the party who has thus pleaded such unnecessarly matter will be
required to prove it, and thus he is required to sustain an increased burden of
proof, and incurs greater danger of failure at the trial. For example, if in
justifying the taking of cattle damage feasant, in which case it is sufficient
to allege that they were doing damage to his freehold, he should state a seisin
in fee, which is traversed, be must prove a seisin in fee. Dyer, 365; 2 Saund.
206, a, note 22 Steph. on Pl. 261, 262; 1 Smith's Lead. Cas. 328, note; 1
Greenl. Ev. §51 1 Chit. Pl. 524, 525; U. S. Dig. Pleading, VII. c.
SURPLUSAGE, accounts. A greater dishursement than the charges of the
accountant amount to.