Goodman v. Griffin , 3 Stew. 160 ( 1830 )

By JUDGE COLLIER.

The assignment of error brings to our view, the correctness of the instructions given the Court below, in Bruce v. Edwards ^a it was ruled, that the statute which requires the surety, in order to his discharge, to make a request in writing of the holder of a note or bond, to sue the principal, was cumulative; and that the surety might discharge himself by a verbal request to sue, if after a'failure ofthe holder to com-, ply, the principal became insolvent. It is apparent, according to the law as stated in that case, that the Judge erred in his instructions to the jury. He did not leave it to them to decide the questions of fact whether the request to sue was made by Cheatham, or whether Myrick was able to pay the note at the time of the request, and whether he has since become insolvent. The decision of these questions appropriately belonged to the jury, and had they been all found affirmatively by them, the plaintiff in error would have been entitled to a verdict. But the judge decided that nothing but a written request would discharge the surety.

As the question was not argued, we purposely decline expressing an opinion whether a parol release founded upon a valuable consideration, is pleadable at law. It is sufficient to remark, that the discharge attempted to be set up by the plaintiff is founded upon no adequate consideration. The decision in Bruce v. Edwards, expressly professes to he founded upon the common law, which in the absence of opposing proof must be presumed to be the same in the several States ofthe Union;^b and the reasona-^eness of this presumption is quite apparent, when it is recollected that they all derive it from a common source; c ¡uid although the several matters which the plaintiff in error offered in his defence transpired in South Carolina, are controllable by the lex loci, the local law of that State will be presumed to be similar to that of this. Thcjudgment is reversed and the cause remanded.

Reversed and remanded.

a 1 Stewart 11.

b 8 Mass. R. 99. kents Com.