16 Ala. 465 | Ala. | 1849
It is not shown by the transcript that judgment was rendered upon the demurrers interposed in the Circuit Court. True, there are notes made (apparently) by the clerk, in which it is stated that,the demurrers were overruled, but these are not noticed in the judgment enlry and cannot be considered here, although they may have authorised a modification of the entry nunc pro iunc, had a motion been made for that purpose in the court below. We would, however, remark that we have looked into the pleadings, and are strongly inclined to think that the defendant has not been prejudiced by the decision upon the demurrers against him.
In McBroom et al. v. The Governor, &c., 6 Port. Rep. 32, it is conceded to be a general rule that the extinction of the liability of the principal debtor is also the extinction of the liability of the surety; but it is added, that an exception obtains, when this extinction is caused by operation of law. It was further said, that if a loss results from the delay of the creditor to present his claim to the representative of the principal debtor, where the latter has died, this neglect' cannot destroy the obligation of the surety, any more than in any other case where the loss is the consequence of the delay of the creditor. No case, it is believed, can be found, in which it has been held that mere passiveness will discharge the surety. So it has been held, that a surety cannot plead that his principal is dead, and due presentment of the claim was not made to his representative. Nor will the omission to present the claim for payment, to the representative of the principal-in the debt affect the right of the surety to recover from his estate, if he is compelled to pay it. Hooks & Wright v. The Br. Bank at Mobile, 8 Ala. Rep. 580.
Where a demand against the estate of a deceased person is not presented within eighteen months after the grant of letters testamentary or of administration, if it did not accrue until after the expiration of that period, it will not be barred by the statute until the expiration of eighteen months from the time of its accrual. Neil v. Cunningham’s Ex’rs. 2 Port. Rep. 171; see also Cawthorne v. Weisinger, 6 Ala. Rep. 714; Powe & Smith v. Tyson’s Ex’rs, 15 Ala. Rep. 221.
It remains but to add that the judgment is affirmed.