Bruce v. Edwards , 1 Stew. 11 ( 1827 )

JUDGE TAYLOR

delivered the opinion of the Court, There is no instance in which the law does not look favorably on the situation of securities and extend to them every assistance to secure the payment of the debt by the principal. So strict has been the construction in favor of this class of debtors, that any material alteration of the contract, without the express consent of the security, terminates his responsibility. In this case no injury could have resulted to the holder of the instrument by proceeding, upon receiving notice to sue the principal, for he might have sued the security also at the same time. To. say that a security should always pay the debt and resort t0 ^ Pr'ncTa^ f°r his indemnity, would o'ften, without sufficient reason, lay on him a burthen too hard to be borne. The case in 13 Johnson, 174, clearly supports the plea and tends to confirm the opinion of the Court that it is good at common law. As to the statute,“ its titleshews thatit was enacted “for the relief of .securities;” ^a construction which would give it the opposite effect surely would not be correct. It is believed,however, that the statute and the principle at common law, are distinct in their effects. To make a plea of this nature available at common law, it is necessary to aver and prove, that the principal has become insolvent after notice given to sue him, and that the means of recovering the debt of him have been lost by the negligence of the plaintiff. By the statute, it is only necessary to aver that notice in writing was given, and that the plaintiff did not use due diligence. The statute is cumulative.

Coalter, for plaintiff. Martin, for defendant in error.

It was insisted in the argument, that to authorize such a plea as this, it must appear on the face of the note, that the defendant was security. But no good reason can be perceived for his not being permitted to aver and prove, this fact as any other; such proof does not contradict, or in any way affect the obligatory force of the instrument.

Let the judgement be reversed and the cause be remanded.

a Laws Ala. -in.