Hawkins v. Ridenhour

RYLAND, J. The principal point for our adjudication in this case, arises from the instructions given and refused by the Circuit Court. These instructions all appear in the above very full statement of the case. We will notice those prayed for by the defendants and marked 3nd and 4th in the above statement. These instructions were properly refused. The testimony as preserved in the bill of exceptions does not warrant the giving of any instructions. The merely advising a debtor by his creditor, to carry his negroes and horses to a better market, sell them there, and return and pay his debts, and if he be unable to pay all, then pay pro rata, although that market be out of this State, never can be considered as a fraud upon or operate as a release lo the securities of the debtor in a note to such advising creditor. There is no error in refusing these instructions, nor in giving the 4th instruction asked for by the plaintiff as marked in the above statement. These instructions bring up the same subject and are nearly the converse of each Other. No delay on the part of the creditor, will operate to release the security, which would not act as a bar for the principal. In our State, securities have the power to require the creditor to bring suit, in order to hasten the collection of the debt; and a failure or neglect to sue as required, upon proper notice, will, after the lapse of a certain number of days, ’operate as a discharge of such security. There appears nothing ill the testimony of this case, requiring such instructions as the defendants prayed for as above. We will pass over that objection and come to the main question, which is the statutory bar ; the limitation to the plaintiff’s right to recover, because he failed to present his demand within three years from the date of the letters of administration. From the testimony, it appears that one administrator alone subscribed his name to the notice — that it was no-t signed by his co-administrator, and that the letters were granted to two persons. This is also objected to, by the plaintiff as not being sufficient. We will not give an opinion on this point, as the notice is fatally defective in another important point deeming it, however, not amiss to say it is the best and safest course to have the, notice subscribed by all or at least by a majority of the persons to whom the letters have been granted. The notice to the creditors, in this case, was not published until after the expiration’of the thirty days from the date of the letters. It was published on the 31st day after their date. We hold this not a compliance with the statute ; and as the law authorizing it has a tendency to destroy rights, we shall require a strict compliance with its provisions. This view of the case is not new; it has heretofore been sanctioned by this court, gee Wiggins v. Administrator [93] of Lovering, 9 .Mo. R. 265. We therefore find no error in the court below giving the 1st instruction as above set forth for the plaintiff. The publication of the notice, must commence within the 30 days, from the date of the letters ; but its entire publication need not be completed within the thirty days. It must, however, commence within that period. See Montelius & Fuller v. Sarpy, 11 Mo. R. 337, and the case of Wiggins v. Lovering’s Administrator above cited.(a) We find no error in giving this instruction or refusing the converse. The judgment of the court in this case is wrong. It must be amended so as to be against the estate of the intestate, and not against the administrators personally. It must also be corrected so as to bear six per cent, interest only, instead of ten. All judgments, under the present statute concerning Interest, can bear but six per cent;, no matter what interest the instrument on which the judgment is founded bears. See statute concerning Interest, Laws of Mo. Session 1846-7, p. 68, §§ 1, 3. This case will be remanded to the Circuit Court, with directions to amend the judgment in the above particulars ; in all'else, it is affirmed. Footnotes [a] (a) Bryan v. Munday, 17 Mo. R. 538.