
    P. M. Miller vs. Childress.
    X. Where a statute is plain and explicit in its meaning, and its enactment with* in legislative competency, the duty of the court is simple anil-obvious, namely, to say, sic lex cd scripta, and obey it.
    2. The act of 1801, ch. 18, giving a right to securities to be discharged from a note or obligation upon the refusal of principal, after notification to sue, is in derogation of common law and must be strictly complied with. A notice not in writing, or proven by loss than two witnesses, will not satisfy the statute.
    On the 9th day of April, 1849, Edwin H. Childress instituted an action of debt in the circuit court of Madison county against Pleasant M. Miller. The plaintiff declared in the usual form on a bill single, executed on the 19th day of January, 1837, by P. M. Miller, together with W. B. Miller, R. H. Byrne and John G. Chal-mers, (who were not sued in this action,) for the sum of $5000, payable twelve months after the date thereof.
    To this declaration the defendant pleaded, that he signed the writing, obligatory, set forth in the plaintiff's declaration, as the security of William B. Miller, and in no other capacity whatever; and that afterwards, to wit, on the-day of-— 183-, after the obligation fell due, R, H. Byrne, one of the co-securities with himself, notified Childress in writing more than thirty days before the commencement of this suit, to institute suit forthwith on said writing obligatory, and that if he failed so to institute suit that said securities would claim the benefit of the act of 1801, ch. 18; that said Childress, though notified as aforesaid, had without the consent of said Miller totally failed and refused to institute suit within thirty days after said notification. The plaintiff replied to this plea by denying it, and issue was joined thereupon.
    At the August term, 1849, this issue was submitted to a jury, Judge Read, presiding. It appeared in evidence that W. B. Miller was the principal in the obligation, and that Byrne, P. M. Miller, and Chalmers were securities; that in the summer of 1839, Childress was called upon by Byrne and requested to sue on the writing. W. B. Miller testified that after the obligation fell due, and more than thirty days before the institution of this suit, Chil-dress addressed him a letter requiring him to pay the same, in which he stated that he had been notified to institute suit thereupon; and that he had lost the letter; that some time after this he saw Childress, and asked him who had notified him to sue, and was informed by Childress that Byrne had requested him to sue.
    
      The jury, under the charge of Read, judge, that the notification to sue must he in wriiing and- that there must be two witnesses thereto, returned a verdict in favor of the plaintiff for the sum of $5000 debt, and $1149 damages.
    The defendant moved the court fora new trial. This motion •was overruled and judgment rendered .upon the verdict. Defendant appealed in error to the supreme court.
    
      Brinkley, for Miller.
    
      Totten, for Childress.
    
   Reese, J.

delivered the opinion of the court.

In this case, upon the trial in the circuit court, there was a plea under the statute of 1801, ch. 18, sec. 1, 2, 3, 4, that P. M. Miller was a co-security with one Byrne for one W. B. Miller, and that one Byrne gave written notice, &c. There was issue upon the plea, and a verdict for the plaintiff below. Without pausing to inquire whether the plea as pleaded was good under the statute or not, we shall only consider whether the court erred in the charge to the jury. That part of the charge was as follows, to wit:

“As to the question of notice to sue under the statute by the security, that the law required the notice to be in writing, and that nothing less than written notice would satisfy the statute; that as to the statute requiring two witnesses to prove a copy of notice, this was a guarded provision, growing out of the statute, for the benefit of the holder, that his rights should not be prejudiced by fraud, perjury or imposition; that, under the rule that the party’s own admission should be evidence against him, (even should the jury suppose that the notice served in Childress’ letter to Miller was written notice,) the law, assuming the principle above mentioned, would require the testimony of two witnesses to the fact, and that the testimony of a less number would not satisfy the statute.”

There can be no error in the above charge as against the plaintiff. The 1st section of the statute requires in terms that the notice shall be in writing, and the notice is to contain the_absolute requisition forthwith to put the bond, note, &c. in suit. The 4th section provides explicitly that the security must prove in open court by two witnesses a copy of the notice aforesakTto have been served on the person bringing such action. Where a statute is plain and explicit in its meaning, and its enactment within the legislative competency, the duty of the courts issimple and obvious, namely, to say sic lex scripta, and obey it. In this case, nothing is left to judicial construction, but if there were, it is clear that it occurred to the framers of the act, that this mode of discharge, contrary to the forms and course of proceeding at common law, might be in danger of tending to the wrong and injury of the holder of the note; so the notice was required to be in writing, and' the notice was required to be proven by two witnesses. Of course the notice not in writing, or proved by a less number than two witnesses will not satisfy the statute. Let the judgment be affirmed.  