Bolton v. Lundy , 6 Mo. 46 ( 1839 )

Opinion of the court delivered by

Tompkins Judge.

“Bolton sued Lundy in the Circuit Court, where judgment was given against him, and to reverse the judgment he appeals to this court.

The suit was commenced in the Circuit Court on a note executed by John C. Williams and Richard Lundy to Bol-ten. Cu the trial it appeared in evidence, that Lundy gave ver'óal notice to Bolton to sue Williams, he, Lundy, being security only. It was contended that the notice should Lave been written. These are the words of the act of 1S35 concerning securities sec. l,page 574. “Any person bound as seem it y for another in any bond, bill or note for the payment oí money or delivery of property, may, at any time after an action has accrued thereon, require the person having such right of action forthwith to 'commence an notion against the principal debtor, and all the other parties liable.”

One could hardly imagine how an argument could be maintained on this subject, the law being as it is.

But it was contended that as the statutes previously made on this subject both under the Territorial and State Gov-ernmeuts required written notice to he served, therefore the Legislature intended that the notice, here required to' be served, should also, he in writing, although the act did not-*n terms require it, I, perceive no jsrror pa the decision ef the circuit court that a verbal notice is sufficient, such being the opinion of all, it is affirmed.”

Leonard for appellee.

“The oah question riresented by the record is whether ander the ;u-i of the loth of March 1835 concerning “securities,” S. Mo. 574) a notice to sue, not in writing, is sufficient to discharge a security-from his obligation.

In support of the affirmative of this proposition, it is re-hmitted to the court on behalf of the appellee words of the' statute, to which securities are indebted for this remedy, do not require the in writing — The words are unlimited — as com-i hey can be “any person bound as security i.i ¡my bond &c. may require the person having ' notion forthwith to commence suit &c.” [R. S. if.- demand therefore a written notice, a require-Tng, is a construction contrary to the plain let-spectfuliy r1 that Lt, tí ¡exclusivo! v notice to b prehen:, i co for ano the i the right n' Mo. 57-1 ] meni in w;< ter of the

-.••r.trary also to the intent of the Legislature, as is manir. :tod in various ways. 2. And.

1. Tho.o aro many instances in-the revised Statutes of 1835, where the Legislature have required a notice to be given, and wherever it was their intention, that such notice should be in writing, they have so expressly, declared. R, S. M. 357, sec. 9, lb, 220, see. 6.

2. In t1 e very statute now under consideration, we have two other instances of notices being required, and it being the Legf-iarive intention that, in these cases; the notice should be m writing, they have expressly made this requisition R. L. 1-75; sect. 9 — and 12.-

3. Tho-'-mi act on this subject passed in 1816 (Geyer* digest, 36o ; cc. 1) expressly required the notice to be in writing — ‘"my by notice in writing require &c.” This phraseology was continued in the law through the revision of 1825 (it L. M. of 1825 735, sec. 1,) down to the last revision — space of nearly twenty years, when the words *Jby notice in writing “were, as it must be presumed, intentionally omitted* with 9 view to, a change qf th@ law on this subject”