11 Ala. 922 | Ala. | 1847
The statute under which the motion was made allows the recovery by one surety, when sued by a creditor, against another not sued, and directs, “ that it shall be lawful for the person thus sued to notify in writing, his co-surety or sureties, or either or any of them, of the pending of the suit; and it shall be the duty of the court, &c., before which the said suit is to be tried, on proof being made at the trial that notice in writing has been given to said co-surety or sureties, and that the said parties are sureties, to enter up judgment in favor of the surety sued, against such co-surety or sureties, each thus notified as aforesaid, for the proportion of said debt or demand, with costs, which such co-surety or sureties should pay; that is to say, in case there is but one co-surety, then judgment shall be rendered in favor of the surety sued, for one half of said debt or demand, and costs; if there are two co-sureties of the person sued, then for one third; and at that rate according to the number of co-sureties : Provided, however, that if any of said co-sureties are insolvent, the surety thus sued as aforesaid, may on said motion, to be made as above, recover a judgment against said co-snrety or sureties, thus to be notified, the proportion which said co-surety or sureties should pay, if such insolvent co-surety or sureties were not bound for said debt or demand.” [Dig. 533, <§> 12.] This act is so precise as scarcely to present room for construction, and it is difiicult to conceive how the court below could, in view of it, have arrived at the conclusion the plaintiff was entitled to judgment against his co-surety for more than one half the sum recovered from him. The circumstance that the principal debtor had previously deposited property in his hands for the common indemnity of all the sureties, does not, in our opinion, warrant the court in this summary mode of proceeding, from giving judgment for a different portion than the statute directs. In order to compel the defendant to make the proper application of this property, or the funds derived from it, the plaintiff has other and appropriate means to which he must resort.
Under these circumstances, the statute creates no bar as between these parties. The contract between the sureties, as we have already seen, is one for mutual protection and indemnity, consequently there can be no breach until a payment has been made by one on the common account. In McBroom v. Governor, 6 Porter, 43, we say with reference