1 Stew. 11 | Ala. | 1827
delivered the opinion of the Court, There is no instance in which the law does not look favorably on the situation of securities and extend to them every assistance to secure the payment of the debt by the principal. So strict has been the construction in favor of this class of debtors, that any material alteration of the contract, without the express consent of the security, terminates his responsibility. In this case no injury could have resulted to the holder of the instrument by proceeding, upon receiving notice to sue the principal, for he might have sued the security also at the same time. To.
It was insisted in the argument, that to authorize such a plea as this, it must appear on the face of the note, that the defendant was security. But no good reason can be perceived for his not being permitted to aver and prove, this fact as any other; such proof does not contradict, or in any way affect the obligatory force of the instrument.
Let the judgement be reversed and the cause be remanded.
Laws Ala. -in.