Shehan v. Hampton , 8 Ala. 942 ( 1846 )

GOLDTHWAITE, J.

1. To a full understanding of the questions on the demurrer to the plea, it is necesspry to recite the statute on which it is founded. So much as is necessary for this purpose, is in these words : “ When any person shall become bound as security, by bond, bill or note, for the payment of money or any other article, and shall apprehend that his principalis likely to become insolvent, or to migrate from this State, without previousiy discharging such bond, bill, or note, it shall be lawful for such security, in any such case, (provided an order shall have accrued on such bond, bill or note,) to require,in writing, of his creditor, forthwith to put the bond, bill or note, by which he may be bound as security as aforesaid, in suit, and unless the creditor 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 said bond, bill or note, .the creditor so failing to comply with the requisition of such security shall thereby forfeit the right which he otherwise would have had to demand and receive of such security the amount of such bond, bill or note.”

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, which has been recognized ever since as a correct exposition of the law, that a general notice to sue the principal is different from the notice under the statute. In the one case the surety is discharged only if he is injured by the delay, but in the other absolutely. It seems to me this calls for the strictest construction of the statute, and by its terms the discharge is allowed in two cases only, viz: when the surety apprehends his principal is likely to beeome insolvent, or that he is about to migrate from the State without previously paying the debt, that the surety ought to be held to express this apprehension in his notice to the creditor. If this is not required, how is the creditor to understand whether the notice is under the common law’ or under the statute. The majority of the Court, however, entertain a different opinion, and consider the apprehensions of the surety as matter which cannot be put in issue, and therefore need not be stated either in the notice or plea. We all concur that the plea is unexceptionable in other respects, as it substantially pursues the statute. The plea being sufficiently pleaded, in the opinion of the majority of the Court, the demurrer was improperly sustained.

2. The question upon the admission of the notice to the jury, involves two points : first, whether it is good as a statutory notice ; and second, if it is, whether it was admissible under the general issue.

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.].

3. If the attempt was to relieve the surety in consequence of the omission to proceed against the principal after notice, under the common law rule, the evidence would certainly be admissible under the general issue, because that is a defence by the common law, and shows that ex equo el bono, the plaintiff is not entitled to his action. [Manchester Co. v. Sweeting, 10 Wend. 162.] But when the defence is under the statute, the omission to sue is a discharge, independent of all equitable considerations. In this respect, it does not seem to differ from a discharge produced by the insolvent or bankrupt statutes, which must be pleaded specially. [1 Chitty’s Plead. 474.] We therefore incline to the opinion that when this statutory notice is interposed as a bar, it can only be done by a special plea.

4. It is true a technical error was committed in sustaining the demurrer to the special plea ; • but the defendant shows this error is wholly immaterial, for he produces the notice which he gave, and had all the advantage of it, as a common law notice, under the general issue, and that too, when in point of law., the notice was insufficient to let in the defence. The jury, in effect, here declared, he has sustained no injury from the plaintiff’s omission. In McKenzie v. Jackson, 4 Ala. Rep. 230, and Rakes v. Pope, 7 Ib. 162, we held there was no sufficient error to reverse the judgment, although a demurrer to pleas had been improperly sustained, if the same defence was admitted, and admissible under other pleas. In the present case the party has had all the benefit from his defence, which under the most favhrable circumstances he would be entitled to ; and it seems to us a strained presumption, to suppose he may have another written notice, which, in the event of another trial, will fit liis plea. We think the principle of the cases just cited, extend to govern this.

Judgment affirmed.