
    Colerick and Others v. McCleas.
    Under the statute of 1838, notice by a surety to the holder of a promissory note to sue the principal, must he in writing.
    
      
      Thursday, June 4.
    APPEAL from the Allen Circuit Court.
    D. H. Colerick and R. L. Walpole, for the appellants .
    
      R. Brackenridge, for the appellee.
    
      
      
        Colerick, for the appellant, made the following points:
      1. Whether a surety has been discharged or not, is a question of law. People v. Jansen, 7 Johns. 336.—Rees v. Berrington, 2 Ves. Jr. 542. In the case of King v. Baldwin, 17 Johns. 384, the principle recognized in the case of Pain v. 
        Packard, 13 Johns. 174, has been examined and vindicated with transcendent ability by the late Chief Justice Spencek. The doctrine was this; “ That if the payee of a note is requested by the surety to proceed without delay to colleet the note from the principal, who is then solvent, and if the payee neglects to proceed against the principal, until he becomes insolvent, the surety may plead these facts at law, and if they are established, he will be exonerated.” The Chief Justice said, in the case above cited, “ That in the cases of the People v. Jansen and Pain v. Packard, the Supreme Court referred to the case of Tallmadge v. Brush, and admitted the doctrine of that case, that mere delay by the creditor, in suing the principal, would not discharge the surety; and the principle adopted in Pain v. Packard, was this : “ That where the creditor did an act injurious to the surety, or omitted to do an act, when required, which equity, and his duty to the surety enjoined him to do, and which omission was injurious to the surety, in either of these cases the surety would be discharged.” The learned Judge further says : “ The fact of a man’s being hound as a surety can be averred at law, if it become material to a legal inquiry; for the rules of evidence are the same in both Courts, and it will be a vain effort to find the principle which allowed the inquiry in a Court of equity, and denied it to a Court of law.” And it was insisted that the defense set up in the plea, being a legal one, and the general rules of evidence being alike in both Courts, the Court below was competent to administer the relief; The Chief Justice further said: “I disclaim the introduction of a new principle of law, but have endeavored to show that the principle is one already fixed; that a Court of law has cognizance of it, and that, without the previous monition of a Court of equity. If a creditor will disregard the rights of a surety so far as unconscientiously to refuse to proceed at law for the recovery of his money, when fully and reasonably required, and a loss happens by such refusal, that loss ought to bo thrown on the party whose unconscientious conduct has drawn it on himself.” The same principle is recognized in Fulton v. Matthews, et al., 15 Johns. 433. It is there said that “ a surety is not discharged by the plaintiff’s giving time to the principal debtor, or even by his discontinuing a suit commenced against the principal, without the privity or consent of the surety, unless the surety has explicitly required him to proceed against the principal, or that the plaintiff has, by some agreement with the principal, precluded himself from suing.” See, also, 5 Wend. 501; 4 id. 570; 6 id. 236; 1 id. 457; 19 Johns. 69; 9 Cow. 693. The Court declared in 10 Wend. 160, “That the refusal to sue, on the part of the plaintiff, is tantamount to an agreement not to prosecute the surety.” See, also, 1 Bos. and Pull. 419; 6 Paige, 254; 2 Wheat. 396; 3 Cranch, 73, 91; 8 id. 432.
      In Dennis v. Rider, 2 McLean, 451, decided in Illinois, where there is a similar statute to our own, the notice was not in writing, and the Court said: “ The pleas are not filed under the statute, but at common law.” There, the Court overrules the case of Pain v. Packard, but gives no reason save that Chancellor Kent had done so in King v. Baldwin. Judge McLean says that Pain v. Packard was decided without argument; but Ch. J. Spencek says, in King v. Baldwin, that the Court gave it a very critical examination. Judge McLean admits, however, that the principle of that case was recognized in 5 Ham. 207; and that notice to thengent of the principalis sufficient. He also admits that in a plain case, where the principal was solvent when the notice was given, and afterwards he became insolvent, the New York rule, as he calls it, would be salutary. The language of the Judge which seems to bear most strongly against this case is mere dicta. At all events, he has not answered the argument of Ch. J. Spencee.
      2. It is contended that we ought, under the statute, to have required the plaintiff, by a written notice, to proceed against the principal. In 1838, long after the note became due, the statute was enacted, and it was not published until after said notice had been given; but suppose it had been in force, it would make no difference. The statute enacts, that it shall be lawful for a surety, if he apprehends, &c., to notify the creditor in writing to forthwith put the bond, note, or other contract, in suit, &c.; and if he fails, the bail should be exonerated. R. S. 1838, p. 233, s. 1. This is an affirmative statute, “And it is a maxim of the law, that an affirmative statute does not take away the common law.” 6 Bac. Abr. Statutes, G. 376. A statute made in the affirmative, without any negative expressed or implied, doth not take away the common law. 2 Institutes, 200.—1 id. 115, a. n. 8 and 9. Although an affirmative statute does not take away the common law, it is nevertheless binding, and a party may make his election to proceed upon the statute or at commonlaw. 6 Bac. Abr. Statutes, G. 177.—2 Institutes, 200. “When the common law and the statute differ, the common law gives place to the statute, but only when the latter is couched in negative terms, or when its matter is so clearly repugnant that it necessarily implies a negative.” State v. Norton, 3 Zabr. 33.
    
   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 .

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs. 
      
       See, also, 7 Ohio R. 72, pt. 1st.
     