SUR CUI ANTE DIVORTIUM. The name of a writ¹ issued in favor of the heir of the wife, where the hushand alienated² the wife's lands, during the coverture, and afterwards they were divorced and she died, to recover the lands from the alienee³. 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 equity⁴, 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 applied⁵ 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 supersede⁶ all necessity for farther commentary. `Upon a liberty to the plaintiff to surcharge, and falsify,' says he, `the onus⁷ 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 omission⁸, 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 binds⁹ 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 Watts¹⁰, 258.

2. The surety differs from bail¹¹ in this, that the latter actually has, or is by law presumed to have, the custody¹² 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 decided¹³ that the creditor¹⁴ 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; Contracts; Suretyship.