Towns v. Riddle

GOLDTHWAITE, J. I. We cannot examine the question, which is presented by 1 he bill of exceptions in relation to the course pursued in permitting the defendant to examine witnesses, after the plaintiff had closed his rebutting evidence, for the purpose of revising the action of the Court, because the course of trial is entirely within the discretion of the Court; and because it is impossible for any revising tribunal constituted of judges, different from those, who preside in the Circuits to ascertain whether the particular proceeding complained of, is calculated to advance or defeat the justice of the case. We might be inclined to think the reasons assigned in the bill of exceptions insufficient to authorize a departure from the common mode of examintion, but we are not informed, "nor can we be, that injury has, thereby resulted to the plaintiff. 2. The instructions given by the Circuit Court in relation to' the supposed agency of one of the sureties, in giving notice to the plaintiff to commence suit against the principals, is certainly involved in much obscurity * but it is equally certain, that the charge was more favorable to the plaintiff than he had the right to call for, and therefore, cannot be assigned as error, unless it was calculated to mis] ead the jury. We understand the charge to be, that it was necessary for the jury to believe that Walker acted as the agent of his co-surety, the defendant, when he gave the plaintiff notice to sue the principal debtors; but that this might be inferred from the beneficial consequences to be derived from the nc.tice, especially, as the defendant had never thus affirmed it.’ We consider the law of such a case to be, that whenever one co-surety is discharged in consequence of the omission to sue after such notice has been given the discharge must enure to the benefit of all the sureties; and this rests on this obvious principle, that'if one surety is discharged from tlio contract, his obligation to his co-surety is also discharged, and never can be revived. The plaintiff cannot, in such a case, recover against any one of the sureties, because ¿he right of contribution, which before existed has been de-stroyedjry thy omission of the plaintiff to do that which equity requires him to do, when called on by a surety. The charge when examined means nothing nior'e than 'this, that the notice to sue was such a matter as .enured to the ben [698] efit óf the defendant* unless the act was disaffirmed by him. We are unable to see how, or in what manner-this could prejudice the plaintiff. 3. The only other error complained of, is that the other charge given did not arise out of the evidence, and was calculated to mislead the jury, from a consideration of the true question — the. insolvency of the principals — after the period when the- money could have been collected, if they had been sued immediately after the notice was given. The charge is admitted to be correct in point of'law. We are not prepared to say that any evidence was before the jury from which a contract to give additional time to the principals could be properly inferred; it is possible that the defendant may have considered it differently, and both parties may have conceded, that the inducement spoken of by the witnesses was a contract. It was clearly the duty of the plaintiff to have requested a more specific charge, if the one then given was calculated to affect his rights injuriously, in consequence of any misapprehension by the Court of the legal effect of the evidence before the jury. In the case of Herbert v. Huie, 1 Alabama Rep. N. S. 18, the consequences of neglecting to request a specific charge are thus stated. “If the Court refuses to give a charge improperly asked for, and then charge the jury wrong in point of law — the case must be reversed. But this is not the case here ; the charge is right and the objection, in effect, is, that the Court did not inform the jury of its own mere motion, what constituted a bona fide purchaser or holder for a valuable consideration.” So, in the present case, the complaint is, that the Circuit Court did not, of its own mere motion, inform the jury what were the facts necessary to constitute a new contract between the plaintiff and the principal debtors. It is not necessary to controvert the position-that juries may be misled by charges which are obnoxious fo no legal criticism. The case of Sims v. Sims, 8 Porter 449, presents an example of such a charge; but there it was immediately connected with the evidence, and the result showed, that the jury was misled by it. It is not impossible, that in this case the jury may have been misled by the generality of the charge; but there is [699] nothing in the result of the'case, which deads necessarily to such a conclusion; it may have been decided entirely on the ground, that the principals became insolvent, after the money, might have been collected, if they had been sued. We mar speculate on the causes which influenced the verdict, but we can arrive at no certain result. There is no error, and the judgment is affirmed.