Judge Cooley, in the case of Smith vs. Sheldon,1 says: "A surety is a person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have made payment or performed before the surety was compelled to do so."

The surety is one, then, who, by his express contract in writing, agrees to answer to the creditor for the debt, default or miscarriage of another. But to be a surety there must always exist the continuing liability of the principal debtor, for it is a general rule of law, that whatever discharges the prircipal, will likewise discharge the surety. It is also necessary that the promise to answer for the debts and obligations of another, must be made expressly in writing, and to the one to whom the duties or obligations are owing, viz., the creditor. A promise made directly to the debtor, to pay his debt, for instance, would be an original promise.

1 35 Mich., 47; see also Wendlandt vs. Sohre, 37 Minn., 162.

The surety, as such, could not make a promise to answer for a debt, which is partly the debt of another, and partly his own debt. This would be an original promise. He must not have any personal interest, or responsibility, in the obligation, he agrees to answer for on behalf of another, if he would claim the rights and remedies of the surety. His promise, furthermore, must be collateral, and if credit is extended to him, and not to the one originally seeking it, his promise would be original, he would not be a surety at all.

It is not necessary that the principal debtor have knowledge of the fact, that another has become surety for the debt, if there exists a consideration to support the obligation of the surety, moving from the creditor to the surety. Another instance of showing that the principal debtor is not really a party to the surety's contract, is that a false representation on the part of the principal debtor amounting to a fraud, and made to the surety to induce him to become a surety, would not make the surety's contract voidable unless the creditor, with whom the surety contracts, was a party to the fraud.