
    W. R. Josey vs. J. L. Dixon and J. S. Tindall.
    
      Debt not due — Joint Debtors — Practice—Nonsuit.
    Where one of several joint debtors is about to remove from the State, the creditor may proceed under the Act of 1839, by issuing- a joint • writ, and serving the defendant, not about to remove, with a copy, after the cause of action has accrued. If the service-on the defendant not about to remove, be before the cause of action has accrued,' the action will be premature, and a nonsuit will be ordered.
    Defendant, by pleading and giving notice of discount or failure of consideration, does not waive his right to move for a nonsuit, if the action be prematurely brought.
    BEFORE WARDLAW, J., AT SUMTER, JUNE, EXTRA TERM, L859.
    The report of his Honor, the presiding Judge, is as follows
    “ Assumpsit on a joint note, made by these two defendants payable to the plaintiff, dated November 22, 1854, due January 1, 1857.
    “In November, 1856, Dixon being about to leave the State, the plaintiff proeeeded under the Act of 1839 (11 Stat. 94), to sue before the’ debt to him became due. A writ 'of capias ad 'respond. against both defendants was lodged November 20, 1856. Dixon was held to bail, and Tindall was served personally in December, 1856.
    “ The defendants moved for nonsuit — contending that the remedy provided by the Act of 1839, did not extend to the case of a joint contract, where only one of the joint con-_ tractors was about to remove; or that at any rate, the service upon Tindall, who remained in the State, before the note .became due, was premature and unauthorized. I was much inclined to grant this motion; but it appearing that both defendants had appeared regularly at the Spring Term, 1857' and had joined in pleading and in giving notice of discount, I concluded to let the case go on, so that under any view, a final determination of it might be had.
    “ Under the notice of discount, or more properly of failure of consideration, the following case was made by the evidence.
    “1854:. November 22, the plaintiff conveyed'with warranty to Dixon, a tract of land, for twelve hundred dollars, secured.
    “ In part payment of the purchase money, the plaintiff received from Dixon two promissory notes, each for two hundred and sixty-two dollars and fifty cents, made jointly by the two defendants (Tindall being surety), payable, one January, 1856, the other, January, 1857, which latter is tbe . note sued on.
    “The land was then under a mortgage from the defendant, Josey, to one Kelly, to secure a debt of nine or ten hundred dollars; and of this Dixon was informed at the time of his purchase, or soon afterwards.
    “ Dixon conferred with the mortgagee, and an arrangement was made for the meeting of all the parties in January, 1856, to effect a full settlement. Tindall did not attend, nor tbe mortgagee; but the plaintiff and Dixon having obtained an exact statement of the amount due upon the fi. fa. (that had been issued under a judgment, which the mortgagee recovered at law against Josey for the mortgage-debt), this plaintiff, Josey, by money paid, and by the first two of the notes mentioned given up, and a credit entered upon the second note now in question, put in the hands of Dixon the whole'of the said amount, being nine hundred and ninety-eight dollars and fifty cents, which Dixon agreed to apply to the satisfaction of the mortgage.
    “ Dixon, notwithstanding notice given to him that proceedings would be taken to foreclose the mortgage, neglected to make payment to the mortgagee. In April, 1856, a bill in equity for foreclosure of the mortgage, was filed by Kelly against Josey and Dixon. No defence was made; and under the decree of the Court of Equity, the land was sold, in January, 1857, to E. Skinner, for a sum insufficient to satisfy the mortgage, and title, paramount to that conveyed by the plaintiff to Dixon, was executed by the Commissioner in Equity.
    “ I held that Dixon was by the circumstances precluded from complaining of failure of consideration, and that Tindall was bound by Dixon’s acts and agreements in the premises.
    “ The plaintiff had a verdict for the balance due upon the note.”
    The defendants appealed, and now renewed their motion for nonsuit, on the grounds:
    1. Because the action was commenced, and both defendants served with process before the cause of action fell due; whereas the defendant Dixon, was alone proceeded against under the Act of 1839.
    2. Because a defendant has the right, under the law, to avail himself of as many defences as he may have; and by giving notice of discount or- failure of consideration, or by pleading specially, he does not preclude himself from moving for nonsuit, or making any other defence under the general issue which he would otherwise be entitled to make.
    Their motion for nonsuit failing, then the defendants moved for a new trial, on the grounds:
    1. Because his Honor, it is respectfully submitted, erred in instructing the jury that the agreement between Josey and Dixon, in relation to the mortgage, precluded Tindall, the surety, as well as Dixon, the principal, from availing himself of the defence of failure of consideration, so fully and clearly established by the evidence for the defendants.
    2. Because the defence of failure of consideration having been successful, as to Tindall, the verdict should have been for both defendants, or at least for the defendant Tindall.
    3. Because, if plaintiff furnished Dixon with funds to take up the mortgage, and Dixon failed to do so, plaintiff’s remedy is against Dixon alone, for failure to perform his promise to take up the mortgage ; plaintiff has no remedy against Tindall on the note.
    4. Any dealings between creditor and principal without the consent of the surety, whereby the surety may be prejudiced, will avoid the contract as against the latter; and here the surety has been prejudiced by the loss of the land which furnished security for the payment of the note.
    Spain, Richardson, for appellants.
    Motion for Nonsuit. Act of 1839, 11 Stat. 62, gives right of action against the debtor about to remove--the case of a joint contract not provided for. The intention is not to be presumed, but to be collected from the words of the Act, and those words should be constructed in their ordinary import. — Dwar. on Stat. T03. The Act could hardly be construed to provide, that, if there be twenty joint contractors and one were about to remove, they might all be sued. If the action be prematurely brought, it is ground of nonsuit, 1 Chit. pi. 452; Pegram & Go. vs. Williams, 4 Bich. 219 ; and, it would seem, of motion in arrest of judgment, Walher & Bradford vs. Roberts, 4 Bich. 561. Appearance and plea no waiver of right to move for nonsuit, for until' the party appears and pleads, lie cannot make the motion. The notice of discount or failure of consideration is no waiver, for that was to be resorted to as an alternative defence, the right to prepare for which, the law gives every'defendant. It would be new doctrine to hold, that a party by pleading specially waives his rights under the general issue, or that by giving notice of special matter, he waives his right to avail himself of another defence which he might make without notice.
    Eor New Trial, “ The principle upon which the surety is discharged by the creditor giving time to tbe debtor, is also applicable where the creditor enters' into any new arrangement without the consent of the surety, which will have the effect of altering the situation of the surety.” Bees vs. Berrington, 2 W. & T. pt. 2, p. 263, note citing Eyre vs. Bariop, 3 Mad. 221; and Calvert vs. The London Dock Company, 2 Kee, 637. In this case, the new arrangement consisted in paying a contractor to do a particular piece of. work, a portion of the money in advance of the time stijiulated, and this was held to discharge his sureties — a much weaker case than the one before the Court. It was Josey’s duty to take up the mortgage. ■ If he had done- so, the land would have stood as security for the payment of the debt. By not doing so, the land is gone, and yet it is said that- the surety cannot avail himself of the defence of failure of consideration. The new arrangement was a discharge'of the surety, and a fortiori it cannot deprive him of the defence of failure of consideration.
    
      Moses, contra.
   'TJie opinion of the Court was delivered by

Munro, J.

Two questions are presented by the defendants’ grounds for a nonsuit.

1. Whether the Act of 1839 extends to the case of a joint contract, where only one of the joint contractors “ is about to remove, or abscond from the limits of the State.”

2. Whether the defendant whq remained in the State, by appearing and pleading to the action, has precluded himself from moving for a nonsuit, on the ground that the action was premature and unauthorized.

The 1st Section of the Act of 1839, 11 Stat. 62, is in these words: “ That from and after the first day of January next, whenever a person domiciled in the State, being indebted by bond, note, or otherwise, is about to remove or abscond from the limits of this State, and the said debt is not yet due, but payable at some future day, it shall and may be lawful for the obligee, payee or holder of the said demand, or his assignee, or indorsee, as the case may be, upon swearing that such person is indebted to him, and that the demand is just and owing, but not yet due, and that the debtor is about to abscond or remove without the limits of this State, and that such creditor was not aware that the debtor had any intention to remove from the State at the time when the original contract was made, or at the time of such assignment or indorsement, as the case may be, to commence an action by issuing a writ or process returnable to the court next after the day of payment fixed in such demand, and shall have power to hold to bail, in the same manner as is now provided in cases of debt actually due; Provided, nevertheless, that if the debtor shall make it appear, before the return day of the writ or process? to a Judge at Chambers, that such debtor at the time the contract was entered into, had the intention to remove from the State, and that such intention was at the same time known to the creditor, the said suit shall be dismissed with costs.”

On a joint contract under the Act in question, when one of the parties is about removing from the State, we think a joint writ may be issued returnable at a day after the debt is due ; and on making the affidavit required by tbe Act, tbe party about removing may be proceeded against according to tbe provisions of tbe Act, and the resident party after the debt is due, may be served.with a copy of the writ, and that such service as to him, is to be regarded as the commencement of the action. ' .

In this case, the service on Tindall was before the note was due, and hence the action as to him, was prematurely brought.

' As respects the second ground, whether the defendant by appearing and pleading to the action was thereby precluded from availing himself of the defence, under the general issue, that the action had been prematurely brought, the authorities on' this branch of the case are so decisive, that a bare reference to them is sufficient. In 1 Chit. Pl. 453, it is said: “Pleas in abatement to the action of the writ are, that the action is misconceived, as that it is in case, when it should have been trespass, or that it was premature; but as these matters are the ground of demurrer, or nonsuit, it is now very unusual to plead them in abatement.” To the same effect, see 1 Com. Dig. title Action, letter E., 214.

The motion for a nonsuit is, therefore, granted.

O’Neall, Wardlaw, Withers, Whitner, and G-lover, JJ., concurred.

Motion granted;  