Conrad v. Foy

The opinion of the court was delivered, by Asnew, J. When the legislature, by the Act of 25th April 1855, enacted that no special promise for the debt or default of another should be .binding, unless a memorandum or note in writing, signed by the party to be charged, be taken, it gave birth to a principle quite as valuable in the present case as in that to which it was applied. Why should a surety bound in a solemn bond or note in writing, to pay a debt which his credit enabled his principal to create, be discharged therefrom except upon the clearest equity; and why should the written obligation be blown away by the uncertain breath of witnesses ? A notice from a surety to the creditor to proceed against the principal, or otherwise the surety will be discharged, ought in justice to be in writing and in the most explicit terms. But prior decisions have not required this, and we cannot legislate such a rule into existence. We have a right to hold and justice requires us to say, however, that nothing less than clear and positive proof of the notice given by a person duly authorized to give it, and a notice clear and explicit in its terms, given at a time when the creditor has it in his power to proceed to collect his debt, should discharge the surety from an undoubted legal obligation to pay the debt. The notice in this case cannot be said to be of this character. The witnesses differ as to its terms, and it was either doubtful in its character, or it was, according to the major proof, a notice to enter up judgment on a note supposed by the parties to contain a power to enter judgment, but was discovered several months afterwards not to be so. It was given about two months before maturity, and when it was not in the power of the creditor to proceed to collect it, and the persons who gave it were sons-in-law of the deceased surety, whose wives are said to be legatees under his will. The creditor, however, did enter judgment immediately, the prothonotaries, strange to say, taking the note and filing it, as if it contained a power to enter judgment. Now there may be cases where on account of the absence of a representative of the deceased surety, a party interested in his estate may be allowed to give a notice in protection of the estate; but certainly there was nothing in this case to warrant it, and in advance of the maturity of the note. There was no evidence that the executor of Daniel Conrad, though the principal in the note, had refused to give the notice in behalf of Daniel’s estate; or had refused to lend his authority and sanction to the sons-in-law as his agents to give the notice. Now in the absence of any good reason, on what principle of sound equity shall one who has a certain lawful debt, unshadowed by a single [386] infirmity, be compelled by tbe notice of apparent strangers, to hunt tbe will of tbe deceased principal debtor, employ counsel and pay tbe expense of a search to discover their interest in tbe estate, or otherwise submit to a loss of bis debt ? Upon all the facts in tbe case there was no equity established to entitle tbe estate of tbe surety to be discharged, and tbe court should have so told tbe jury. Judgment reversed, and venire facias de novo awarded.