Herbert & Kyle v. Hobbs , 3 Stew. 9 ( 1830 )

By JUDGE CRENSHAW.

The bill seeks relief in equity on the supposition that the defence would have been unavailing in the action at law, because the request to sue was not in writing as required by the act of Assembly. ^a The answer denies that Fennell’s administrators were prevented from bringing suit by reason of any agreement with the administrator of Robinson, and avers that no prejudice or injury has resulted in consequence of any delay to sue, and that Robinson’s estate is in no worse condition than it was at the time of his death. The testimony does not materially contradict the answer, but in fact supports it in several respects.

In the argument, it was contended on the part of the appellants, that the neglect to sue on request the administrator of the principal, and the consequent accruing of injury to the securities, was, in equity, a discharge of thesecurity, and that if the request had been in writing, it would have been a good discharge in law.

We are ofopinion, that a neglect to sue on a verbal request, and consequent injury thereon, is by the securities available as a defence both in law and equity; and that as the securities did not insist on its benefit in their defence to the action at law, they are now precluded from relying on it as a ground of equitable jurisdiction.

The opinion of this Court pronounced by Judge-Taylor, in the case of Bruce v. Edwards, settles the doctrine, that our statute which requires the request to sue to be in writing in order to discharge the security, is cumulative merely of what the law was before the enactment of the statute; and that 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, anc}. that the means of recovering the debt of him, have been lost the

In the present case, the answer does deny that there was any contract or agreement to extend the time of payment, oí that the appellants have sustained any injury by reason of a delay to sue their principal. And a mere verbal request to sue, without a resulting injury, is no discharge of the security either in law or

But it is insisted,'that our statute regulating proceedings In Chancery,^b virtually prohibits the Court from dismissing a bill for want of equity, or when the party could havft-Been relieved at law, unless a general demurrer be filed, or unless the answer prays the benefit of a demurrer. The object of the statute in this particular, was to prevent the filing of pleas and special deciurrers to a bill in equity; and can by no rule of construction be extended to a denial of the power or right to dismiss a bill for want Qf equity, or want of jurisdiction.

We believe it entirely consistent with the rules dfprae~ tice in Chancery, and not repugnant to the provisions of the statute, to dismiss a bill, at least on a final hearing, for the want of equity, or the want of jurisdiction, though the benefit of a demurrer is not prayed in the answer.^a

We are unanimously of opinion that the decree was cor~-. rect.

Decree Affirmed.

Judge Perry not sitting.

a Laws of Ala. 451.

b Laws of Ala. 492.

a vide Moore v. Dial. decided the present term. 1 Johns. cases 492 496. 9 Wheat.532. I Lit. 139. 2 Des. 380.