8 Ala. 942 | Ala. | 1846
It will be perceived, the omission to sue after the statutory notice is given, involves the entire forfeiture of the debt, so far as the surety is connected with it, wholly independent of any question of injury growing out of the delay to sue. In Bruce v. Edwards, 1 Stewart, 11, this statute was considered as cumulative merely, and did not abridge the right of the surety, by the common law, to give notice to the creditor in any other mode. It was also held, that by the common law, the omission to sue involved the discharge of the surety, if after the notice the principal became insolvent. Tt results therefore from this decision,
Independent of my own opinion, that the notice is defective under the statute, for the reason 'stated in connection with the plea demurred to, we all consider it bad, alike under the statute and at common law, in not setting out that the party giving the notice is, in point of fact, the surety for Joel Chandler. Conceding that the notice in other respects, may be general, or at least with regard to the sum, date, and description of the instrument by which the surety is bound, yet, in this instance, the notice or writing gives no intimation to the creditor, that he is required to proceed by suit upon any note in which Joel Chandler is the principal debtor. The notice is too general and indeterminate in this particular, to warrant any presumption thatthe defendant demanded, this particular note should be put in suit. When a statute requires an individual to be designated to another, there must be sufficient information given to enable the person to be ascertained with certainty. [Chichester v. Pembroke, 2 N. H. 530.].
Judgment affirmed.