Colerick v. McCleas

9 Ind. 245

• Court: Indiana Supreme Court
• Decided: June 4, 1857
• Status: Published

Opinion

Perkins, J. —

Suit upon a promissory note under seal, instituted. in 1841.

Colerick, one of the defendants, pleaded that he was a surety only, on the note, and that in 1838, (without specifying the month or day) he verbally notified the attorney of the plaintiff to sue the principals, who were then solvent; and he further averred that suit was not brought pursuant to said notice, but was fraudulently delayed till the principals had become insolvent, when suit was' brought against them and the surety jointly.

Demurrer to the plea sustained, and judgment for the plaintiff.

The demurrer was sustained on the ground that the statute required a written notice, and, hence, that'a verbal one was no notice. To this it is now answered, that the statute was affirmative and cumulative merely, and, hence, did not render invalid a verbal notice, good at common law.

But there is this difficulty in adopting such a proposition. If a verbal notice was good at common law, much more must a written one have been good at common law. Hence, the statute, upon the' proposition, amounted to nothing. We must, therefore, conclude that the statute was intended to declare that the written notice only should thereafter be valid. It meant this or nothing. This Court has acted upon such a view of the statute in a decided case. Carr v. Howard, 8 Blackf. 190. That case seems parallel with the present. See, also, Overturf v. Martin, 2 Ind. R. 507

(1).

Per Curiam. —

The judgment is affirmed, with 1 per cent, damages and costs.

See, also, 7 Ohio R. 72, pt. 1st.