Nation v. Roberts , 20 Ala. 544 ( 1852 )

DARGAN, C. J.

A security who has paid tbe debt cannot recover of bis co-security by way of contribution in this summary mode. Neither of tbe acts upon wbicb tbe plaintiff relies, goes this far. Tbe act of 1821, (Clay’s Digest, 531) allows a security who has been sued alone, and against whom execution is awarded, if tbe principal be insolvent, to move tbe court in wbicb tbe judgment was rendered, for judgment against tbe co-securities who were not sued, for their proportionate part. Tbe act of 1839 allows a security against whom a suit is pending, to move for judgment against a co-security who is not sued, for bis proportionate share of tbe debt. But neither of those acts allows one security to move against tbe other, when tbe common creditor proceeds against both or all tbe securities, and obtains a joint judgment against them. When tbe creditor thus proceeds, and obtains a judgment against all tbe securities, until one has paid all or more than bis aliquot part, be has no cause of action against bis co-security; and if tbe judgment be satisfied by one alone after its rendition; be is then remitted to bis common law remedies, and stands in tbe same situation as if be bad paid tbe debt, without suit, in wbicb case it would not be pretended that be could claim tbe summary remedy given by tbe statute. It may, however, be urged, that these statutes are remedial, and should be extended by construction so as to reach tbe case at bar; but tbe answer is, that as they are in derogation of tbe common law, and give an extraordinary remedy, they must be strictly construed: I mean, tbey must be so construed as not to embrace cases not within the legitimate meaning of the act. See Levert v. The Planters’ and Merchants’ Bank, 8 Porter, 104; Murphy’s Adm’r v. The Branch Bank at Mobile, 5 Ala. 421; The Adm’rs of Alexander, v. The Branch Bank at Montgomery, 5 Ala. 465.

There is no error in the judgment, and it must be affirmed.