Hickam v. Hollingsworth

• Decision Date: 31 January 1853
• Citation: 17 Mo. 475
• Parties: HICKAM, Plaintiff in Error, v. HOLLINGSWORTH, Defendant in Error.
• Court: Missouri Supreme Court

17 Mo. 475

HICKAM, Plaintiff in Error,

v.HOLLINGSWORTH, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

1. Under the act concerning “securities” (R. C. 1845), a surety cannot exonerate himself from liability, by notifying the creditor, after the death of the principal debtor, to present the demand for allowance against his estate, and his failure to do so within thirty days. A case where the principal is dead is not within the meaning of the statute.

Error to Moniteau Circuit Court.

This was an action begun before a justice of the peace and appealed to the Circuit Court, on a note made by James Williams, as principal, and James W. Williams, George Williams, Samuel Murphy, James Smallwood, and the defendant, Hollingsworth, as his securities. On the trial, the defendant proved the death of James Williams, the principal, and then offered in evidence the following notice, which was proved to have been served upon the plaintiff on the day of its date:

“Mr. William Hickam: Sir--You are hereby notified that you must lay in your note on James Williams' estate for allowance, on which we are securities. January 20th, 1847.

JAMES W. WILLIAMS,

JAMES S. SMALLWOOD,

GEORGE WILLIAMS,

W. M. HOLLINGSWORTH.”

The plaintiff objected to the admission of this notice in evidence, and his objection being overruled, he took a non-suit, and after an unsuccessful motion to set the same aside, brings the case here by writ of error. The case turns upon the construction of the first and second sections of the act concerning securities, (R. C. 1845.)

Edwards and Parsons, for plaintiff in error, contended that the notice was not sufficient under the statute. It was too vague and indefinite in its terms. Besides, the plaintiff was not bound to seek the estate of the principal in Boone county, but had the right to sue the defendant alone in Moniteau. Hughes v. Gordon, 7 Mo. Rep. 297. It did not appear from the evidence that the estate of James Williams had been finally settled at the commencement of this suit; nor that there was any administration on the estate until about the time of the commencement of this suit. Under these circumstances, the notice did not exonerate the defendant. Shehan v. Hampton, 8 Ala. (new series) 945. Jenkins v. Clarkson, 6 & 7 Ohio, 266.Hayden, for defendant in error, contended that the notice was substantially in conformity with the statute, and could not have misled the defendant, or been misunderstood by him.

RYLAND, Judge, delivered the opinion of the court.

From the above statement, the important question in this case involves the construction of our statute, authorizing “any person bound as security for another, in any bond, bill or note, for the payment of money, or delivery of property, at any time after an action has accrued thereon, to require, in writing, the person having such right of action forthwith to commence suit against the principal debtor and other parties liable.” R. C. 1845, p. 998, title “securities.”

The second section of this act declares, “If such suit is not commenced within thirty days after the service of such notice, and proceeded in with due diligence, in the ordinary course of law, to judgment and execution, such security shall be exonerated from liability to the person so notified.”

1. Does this statute, either by its letter or spirit, embrace a case where the death of a principal obligor has occurred? If this question be answered in the negative, then the present case is determined without any regard to the form and substance of the notice given, and...