Gillilan v. Ludington , 6 W. Va. 128 ( 1873 )

Paull, Judge:

The Plaintiff as executor of Joseph Myles, suing for the use of Robert S. Shields, institutes an action of debt against the Defendant on a joint and several bond executed by him and one Thomas McClintic, deceased, for the sum of $1,483.69, in the Circuit Court of Greenbrier county.

To the declaration the Defendant files the plea of payment, and offered the following special plea, to-wit.: “ That the Defendant was the security for Thomas Mc-Clintic in the bond in the declaration mentioned, as the Plaintiff's testator well knew, and that the said Defendant on the — day of'-, 18 — , the said debt being due and payable, gave the said Joseph Myles notice in writing forthwith to bring suit upon said bond, and the Defendant avers that the said Joseph Myles, notwithstanding said notice, failed for a long space of time, to-wit.: - years, to bring suit thereon, and until after the death of said Thomas McClintic, so that the Defendant saith that the Plaintiff's right to collect said debt of him has been forfeited and is gone. ” This special plea the Plaintiff moved the Court to reject, which motion the Court overruled, and the plea was filed. Thereupon the Plaintiff replied generally thereto, and tendered two special replications. The first is in substance, that the bond in the declaration mentioned was the renewal of a bond bequeathed by one Robert McClintic to Robert S. Shields, the beneficiary in the action; that the bond in the declaration mentioned was executed to the said Joseph Myles by Thomas McClintic and the Defendant for the sole use and benefit of the said Robert S. Shields, and this the Defendant well knew at the time of executing said bond, and before giving the notice in' the plea mentioned, and that the said Joseph Myles never was the owner of said bond in the declaration mentioned, nor was said Myles the creditor, therein. This replication the Defendant moved the Court to reject; the objection was sustained and the replication rejected. The second special replication is; that immediately after giving the notice in said plea mentioned,. the Defendant withdrew the same, and notified the said Myles not to sue as required by said notice, whereby the Defendant remained bound in said bond. Objection being made to filing this replication, the motion was overruled, and the replication was filed, and issue joined thereon. To the action of the Court overruling the objection to the special plea, the Plaintiff, excepted. And to the action of the Court sustaining the objection to the first special replication, the Plaintiff excepted. General replication having been made to the plea of payment and to the special plea, and general rejoinder to the special replication, the parties went to trial upon the issues thus presented, and also upon another pléa and issue (of which I have taken no notice, the same not being relied on for any purpose), and the jury found the issues involving the questions of notice to sue for the Defendant, and the other issues for the Plaintiff.

Before proceeding to notice the subsequent proceedings in this case, it will be proper to dispose of the questions arising upon the pleadings; and the first is the sufficiency of the Defendant’s special plea.

The plea avers that he is surety for his co-obligor, and that he gave notice in writing to Joseph Myles, the ■obligee in said bond, forthwith to bring suit upon said bond, and that said Myles had failed for years to bring .suit thereon, and until after the death of his co-obligor, and had thereby forfeited his demand. This plea is filed under the provisions of the Code as found in sections 1 and 2, ch. 101; it is claimed tbat tbe plea is defective in not avering tbat tbe Plaintiff bad not only failed in bringing suit in a reasonable time, but tbat be bad failed to do so against every party to such contract, who is a resident of tbe State and not insolvent, and bad failed to prosecute such suit with due diligence to judgment and execution.

This statute in substance, and even almost in its present form lias been in existence in Virginia for many years, and yet no adjudications as to tbe form of pleadings under it are to be found, and the attention of tbe Court has been directed to none from any other quarter. Ve may safely assume, however, tbat tbe Courts will not so construe or administer any statute as to relax or tend to release debtors or sureties from tlicir just obligations to those to whom they have been given. On tbe other hand it will be remembered, tbat a surety has always been regarded in some respects as an equitable creditor of the same principal, .and possessing certain rights and privileges which the creditor himself was bound at his own peril to respect. He could not release ' any property pledged for the security of the debt, noi* extend for a. definite period the time'for its payment without the surety’s consent, otherwise he will be discharged. The statute itself under consideration was-made for the “ relief of sureties,” and is so entitled and is a substitute for the more expensive remedy by bill of quia timet in Courts of Equity, and was designed to afford them the means of sélf protection against loss or prejudice on account of their contingent liability to the' creditor. In Wright’s Adm’r vs. Stockton, 5 Leigh 153, Judge Carr says, in speaking of this statute, “The object of the statute being protection to the sureties, we must, to that end, give it a liberal construction.” The plea before us sets out that the Defendant, the surety,, has done what “the 1st section of .the statute requires, him to do, and all that it requires him to do ; it omits to state, beyond reciting the fact that the Plaintiff bad failed to institute suit in a reasonable time, and the legal consequence which followed, the further particulars connected with the suit, as mentioned in the second section. But these matters are made by the statute the duty of the creditor, and are supposed to be peculiarly within his own knowledge. He is supposed to know where his debtors reside, whether in or out of the State; whether they are solvent or insolvent, and whether he has prosecuted a suit against them with diligence or not. These are matters more likely to be known to him than to the surety; and if on receiving the notice he has complied with these requirements of the statute, he can readily reply them by way of avoidance to the plea. This is not, in my judgment,-from a “liberal” construction of the statute, and a just consideration of the mutual rights and interests of both the creditor and the surety, the one a legal, and the other in some sense an equitable creditor of the same principal, imposing an undue hardship upon the former. The rights and interests of both partie» under the statute can in this way be fully maintained. In my opinion, therefore, there was no error in overruling the objection to the plea; and it is deemed sufficient.

The second question arising upon the record is the sufficiency of the Plaintiff’s first special replication. This recites in substance that one Robert S. Shields was the equitable or beneficial owner of'the bond in suit, and that Joseph Myles, the obligee, never was the owner of said bond, nor was he the creditor therein, and that these facts were known to the Defendant. In contemplation of the statute the creditor, in any contract therein mentioned, is obviously the party having the legal ownership of the debt or demand; one having a right or power to “ institute suit,” as he is required to do on receiving notice. A surety should not be required to go out in search of equitable owners of a debt or claim, to whom be shall give bis notice, and who would have no-right or power to institute, suit themselves, or even to compel the legal owner to commence proceedings. No error is perceived in sustaining the objection to this replication. Nor is there error in overruling the objection to the second replication in regard to the withdrawing of the notice. Proceeding now to the subsequent history of this case, a verdict was found on the main issues for the Defendant; and thereupon the Plaintiff moved the Court to set aside the verdict and grant him a new trial. This motion was granted on the Plaintiff’s paying the costs of the action incurred at that term, within thirty days from that date, otherwise said ' verdict shall stand as the judgment of the Court, and the Defendant recover his costs. I am aware of no authority of law vested in the Circuit Court for making such an order. It was the ordinary motion addressed to the Court for a new trial; and section 5 of ch. 138 of the Code prescribes the terms on which it may be granted, and the powers of the Court in relation thereto. In the above ordér the powers of the Court are not exercised in accordance with the provisions of the statute, at the time therein directed, the Plaintiff having until the next term of the Court within which to pay the costs of the suit. This order being erroneous, no judgment was ever entered» upon the verdict.

The next questions arise upon the Plaintiff’s bill of exceptions; contending first, that it was incompetent for Defendant by parol evidence to prove that he was the surety of his co-obligor, Thomas McClintic; this exception was waived in the argument; and secondly, that it was incompetent for Defendant to prove by parol, the contents of the notice served upon the Plaintiff to bring suit. The exception is not properly taken in this broad form, for it is certainly competent to do so, when a proper case has been made. From the certificate of facts appearing upon the record, it was shown; first, that ■ these two copies as they were called, of this notice were botb signed by the Defendants, and one of which, it was proved, was delivered to the Plaintiff’s testator, and the other to the Defendant; these may be regarded as duplicate originals; the loss of the copy retained by the Defendant was proved by his own testimony; without calling upon the Plaintiff to produce the copy, or the original served upon him, it would be competent for the Defendant then to give notice of its contents. 1 Green-leaf 561. The best evidence was the notice itself. This being lost, and no copy being under the control of the Defendant, the next best testimony ivas that of the witness who saw, and served it upon the Plaintiff. The evidence would seem to be competent under the circumstances, or facts certified.

é The remaining questions arise on the Defendant’s bill of exceptions. The Plaintiff moved the court for a new trial upon two grounds; first, that the verdict was contrary to the evidence, and secondly, that the Plaintiff had discovered new and material evidence since the trial. The Court being of opinion that the verdict was sustained by the evidence, overruled the motion on that ground, but sustained it on the second, and granted a new trial, and the Defendant excepted. All the facts being certified, this Court may judge of the correctness of the verdict on the facts stated. Slaughter’s adm’r. vs. Tutt, 12, Leigh 147; and the case of Mathew W. Harrison, ex’or., &c. vs. The Farmers’ Bank of Virginia, decided at this term.

Taking the plea as sufficient in the form in which it is found in the record, it is clearly proved by the facts, as presented in the certificate; and the evidence fully sustains the verdict. Upon this there was no controversy before this Court, but it was simply contended that other facts should have been proved by the Defendant than those embraced in the averments of the pica, as that the Plaintiff had failed to bring suit against residents, &c. But from what has been heretofore said, this was not incumbent on the Defendant. But it was claimed in argument by the Plaintiff's counsel that the Defendant had sustained no injury from the Plaintiff's omission to bring suit, because it was proved that Thomas McClintic, the principal obligor, had died before a judgment could have been obtained against him in the Circuit Court of Greenbrier County, although it was possible that a j udgment could have been had against him in the County Court. The notice was served on Myles, the creditor, on the 10th day of September, 1858, and McClintic died in March, 1859. But I do not think this question properly arises under these statutory provisions. When the notice has been given, and a plea filed to that effect and proved, the forfeiture will inevitably follow and this without any regard to such a question, unless the Plaintiff avers and proves by way of avoi-' dance that he has complied with the requirements of the statute on his part.. The Plaintiff, I think, is not at liberty to go into an enquiry of that kind as an assignee may do by way of reply to air assignor who suggests that lie lias not used duo diligence in prosecuting a suit against the maker of a note, not having put it in issue. The only remaining enquiry is upon the propriety of the Court's action in granting a new trial on the ground of after discovered testimony. This was done on the affidavits of the Plaintiff and two other parties, viz.: William B. Reid and John Stuart.

The principles which should govern the Court upon this question appear now to be well settled. It was held in Thompson's case, 8 Grat. 637, as follows: “After discovered evidence, in order to afford a proper ground for a new trial, must be such as reasonable diligence on the part of the party offering it could not have secured at the former trial; must be material in its object, and not merely cumulative and corroborative or collateral; and must be such as ought to be decisive and productive on another trial of an opposite result on the merits;” and again, “when the sole object and purpose of the new evidence is to discredit a witness on the opposite side, the general rule is, subject to rare exceptions, to refuse a new trial.” See also Brown vs. Speyers, 20 Grat. 296, and Brugh vs. Shanks, 5 Leigh 598. In the latter case the party made an affidavit “ that a witness had sworn falsely, and had affiant known that he was to be examined, and what he was to prove, he could have disproved the facts testified by him.” But the Court say that a new trial will not be allowed to enable the party to impeach the credit of a witness examined on the trial. After a careful examination of the affidavits appearing in the present record, we do not see that the case is taken out of the operation of these principles. The new testimony, if allowed, would tend simply to disprove the facts established by the testimony of a witness on the trial, by showing that the party on whom the notice wras served was not in the county of Greenbrier at that time. This would be, in the language of the Court in 5 Leigh above cited, impeaching the credit of the witness, and does not take the case out of the rule. Moreover, it does not appear from the affidavits that the new testimony, if allowed, would clearly and absolutely contradict the former witness. The new witnesses would testify only from their own belief, not from absolute personal knowledge of the fact.

'We deem it unnecessary to notice the affidavit of the Plaintiff.

The Circuit Court on the 11th day of December, 1871, set aside the order made at a former term in regard to the payment of costs, and continued the case for trial, and there is now no judgment on the vex-dict, which last named order is erroneous, and is reversed and set aside, and the Appellant must recover his costs in this Court against the Appellee. And the Court proceeding to give such judgment as the Court below ought to have given upon the verdict of the jury rendered in .the cause, the Appellant must recover against tlie Appellee Ms costs about Ms defence in tlie Court below expended.

HayMoNd, President, and Moore, Judge, concur in tlie foregoing opinion.