Savage's Adm'r v. Carleton

33 Ala. 443

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

RICE, C. J.—

If the charge of the court can be sustained at all, it must be by virtue of section 2647 of the Code, which provides, that “ a surety upon any contract for the payment of money, or for the payment or delivery of personal property, may require the creditor, or any one having the beneficial interest in the contract, by notice in writing, to bring suit thereon against the 'principal debtor, or against any co-surety to such contract; and if suit be not brought thereon, pursuant to such notice, to the first court to -which suit can be brought after the receipt of such notice, and prosecuted with diligence according to the •ordinary course of law, the surety giving such notice is ■discharged from all liability as surety, or his aliquot proportion of the debt, as the case may be. One surety may give the notice in behalf of his co-sureties.”

The notice relied on to discharge the surety in the case •at bar, is not “ such notice ” as is prescribed in the section of the Code above quoted. It is not a notice to the creditor “ to bring suit ” on the note against the principal',, or against a surety. It contains no language which can-he fairly construed5 into a demand or requisition on the part of the surety, that suit should be brought on the note. It-does not convey tliedd’e-a that the surety is therein asserting a right to have suit brought on the- note, but amounts; at most, only to the expression of his desire and preference' that the creditor should sue on the note. Amere expression by a surety of his desire and preference that suit-should be brought on a note, is not “a notice in writing-to bring suit thereon,” within the meaning of'seetion 264T of'the Code.—Shehan v. Hampton, 8 Ala. 942.

The court below, in its charge, gave an effect to the-notice relied' on by the surety to which it was not entitled - and'for that error,, its judgment is reversed, and the-causesfem-anded,.