Scott v. Bradford

5 Port. 443 | Ala. | 1837

ORMCWD, J.

This action was commenced by the defendant in this Court, against the plaintiff, on a promissory note, as the surety of one Wood, before a justice of the peace. On the trial, Scott proved that the present defendant, then plaintiff, acknowledged on the day of the date of the warrant, that he had received, written notice from Scott to sue. The justice of the peace rendered judgment for the plaintiff below, from which judgment, Scott appealed to the County Court.

At the trial in that Court, a bill of exceptions was taken, which discloses the fact already stated, of a notice by Scott to bring suit, (and other facts, not necessary to be stated, as they do not influence the opinion of the Court,) — whereupon, the defendant (Scott,) moved the Court, to instruct the jury, that if they believed the plaintiff knew, at the time of bringing the suit, that Wood lived at Huntsville, in Madison county, or elsewhere, it was hiCduty, under the law, there to have sued him, which iii^r^ction was given by the Court, and excepted The jury found for the defendant, and the plaintiff in error prosecuted a writ of error to the Circuit Court, and assigned for error, the charge of the judge of the County Court.— The Circuit Court reversed the judgment of the County Court, and remanded the cause. From that judgment a writ of error has been taken to this Court.

For the benefit of the foreign reader, to whom our statute^ may not be familiar, the sections of the laws embraced within the principles of this decision, are subjoined. — Reporter.

The assignment of error here is, that the Circuit Court erred, in reversing the judgment of the County Court. This assignment brings up for review, the charge of the judge of the County Court.

The correctness or incorrectness of this charge, depends on the construction of an act of the legislature, to be found on page 365 of Aikin’s Digest, section 6,^* which, in substance, provides, that a surety may give written notice to the creditor, after the maturity of the claim, “ forthwith to put the bond, bill, or note in suit,” and, unless the creditor so required, shall, in a reasonable time, commence and prosecute, with diligence, an action thereon, he shall forfeit his right to recover of the surety.

The requisition of this act is, that on the written notice of the surety, the creditor shall put the claim in suit, and, failing to do so, in a reasonable time, the surety is discharged. But who is the creditor required to sue — the principal or the surety, or bothl

The judge of the County Court determined, that the effect of the notice, under the statute, was to compel the creditor to sue the principal; and that his failure to do so, exonerated the surety. This we think, was an incorrect exposition of the statute. The legislature certainly designed to confer a benefit on the surety. What was it 'l At common law, a surety had a right to discharge the obligation himself, and sue his principal. But the payment of the money was onerous, and might be inconvenient. But, by the aid of this statute, he- can compel the creditor to sue, and if the principal be not joined in the suit, the first section of the same law,^* gives him the right, by notice to his principal, to get judgment against him, at the same time judgment is obtained against himself, by the creditors If the creditor failed to put the claim in suit in a reasonable time, and prosecute it with diligence, he was absolutely discharged.

This view of the statute in question harmonises with our other statutory regulations. By an act, passed in eighteen hundred and eighteen, Aikin’s Digest, 267,^† all obligations are made joint and several, and suit is allowed against any one or more of the parties thereto.

Tiie construction which we are asked to put on the act in question, would,- in effect, repeal the act just cited. But the act in favor of sureties, does not require any thing more of the creditor, than to “ put the bond, bill or note in suit.” This appears to have been promptly done in this case, and that is all the law requires.

The judgment of the Circuí Court is, therefore, affirmed.

The view we have taken, renders it unnecessary to decide the other points raised in the cause.

* “ When any person or persons shall become bound as security or securities, by bond, bill, or note, for the payment of money or any other article, and shall apprehend that his or their principal or principals is or are likely to become insolvent, or to migrate from this State, without previously discharging any such bond, bill or note, it shall belawful for such security or securities, in every such case, (provided an action shall have accrued on such bond, bill, or note,) to require, by. notice in writing of his or their creditor or creditors, forthwith. to put the bond, bill, or note, by which he or they may be bound as security or securities, as aforesaid, in suit; and unless the creditor or creditors so required to put such bond, bill, or note, in suit, shall in a reasonable time, commence an action on such bond, bill, or note, and proceed with due diligence in the ordinary course of law, to recover judgment for, and by execution to make the amount due by such bond, bill, or note, the creditor or creditors so failing to comply with the requisition of such security or securities, shall thereby forfeit the right which he or they otherwise would have had, to demand and receive of such security or securities, the amount which may be due by such bond, bill, or note.”— Aikin's Digest, page 385, §6.

* “ In all cases where judgment shall be entered up in any court of record, or by .any justice of the peace, against any person or persons, as security or securities, their executors or administrators, upon any note, bill, bond, or obligation, and in all cases where execution shall be awarded by or issued from any of the Courts of record, or any justice of the peace against any person or persons, as security or securities, his, her, or their heirs, executors, or administrators, upon any bond, obligation or recognizance, and the amount of such judgment or obligation, or any part thereof, hath been paid or discharged by such security or securities, his her or their heirs, executors or administrators, it shall be lawful for such security or securities his, her, or their heirs, executors or administrators, to obtain judgment, by motion against such principal obligor or obli-gors, recognizor or recognizors, his, her, or their heirs, executors or administrators, in any court, or before any justice of the peace, where such judgment may have been entered ,up, and execution awarded against such security or securities, his her or their heirs, executors, or administrators, for the full amount which shall have been paid, with interest thereon from the time the same shall have been paid and satisfied, until' such judgment shall be discharged.” — Aikin’s Digest, page 384, §3.

† Every joint bond, covenant, bill, promissory note, or judgment of any Court of record of any State or Territoiy of the United States, shall be deemed and construed to have the same effect in law, as a joint and several bond, covenant, bill, promissory note, or judgment; and it shall be lawful to sue out process and proceed to judgment against any one or more of the obligors, covenanters,' or drawers of any such joint bond, covenant, bill or promissory note, or against any one or more of the defendants to any such joint judgment.

Whenever a writ shall issue against any two or more joint, or joint and several obligors, covenanters or drawers of any such bond, covenant, bill, or promissory note, or against two or more of the defendants to any such joint judgment, it shall be lawful for the plaintiff or his attorney, at any time .after the return of said writ, or an alias writ,, to discontinue such action against any one or more of the defendants, on whom such writ or alias writ shall not have been executed, and proceed to judgment against any one or more of said defendants on whom said writ shall have been executed, or proceed to issue an alias or pluries writ at his election.” — lb, page 267, §55 and 56.