THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of Alabama.
On the 16th of January, 1837, the plaintiffs in error executed the following bill.
Wilcox C. H., Ala., January, 16, 1837
Twelve months after date, we or either of us promise to pay Montraville D. Taylor, or bearer, the sum of five thousand dollars, value received of him, as witness our hands and seals.
JONATHAN M. HILL, [L. S.]
At some time after the date and delivery of the above bill, Taylor, the obligee, died intestate, and Thomas Jones, a citizen of the state of North Carolina, became his administrator.
In November, 1839, Jones brought suit against all the obligors in the Circuit Court of the United States for the southern district of Alabama. The defendants were returned 'not found;' but the suit being renewed to March term, 1840, they were all served with process except Hill, who was never reached.
Bethea and Roper severed in their pleas from Ellis. The latter pleaded usury, and that he had only received $4000 for the bill. Bethea and Roper pleaded that they were only sureties, but their plea not being sustained, a jury was empannelled, who found a verdict against the whole three, for $4000. As far as Ellis was concerned, there was no appeal, and the only question before this court was upon the validity of the pleas of Bethea and Roper.
In order to understand these pleas, it is necessary to refer to the laws of Alabama.
The act of 1821, c. 26, s. 5, (found in Aikin's Digest, 2d ed., title 'Securities,' s. 6, p. 385,) is as follows:
'When any person or persons shall become bound as security or securities, by bond, bill, or note, for the payment of money or any other article, and shall apprehend that his or their principal or principals is or are likely to become insolvent, or to migrate from this state without previously discharging any such bond, bill, or note, it shall be lawful for such security or securities in every such case, (provided an action shall have accrued on such bond, bill, or note,) to require, by notice in writing, of his or their creditor or creditors, forthwith to put the bond, bill, or note, by which he or they may be bound as security or securities, as aforesaid, in suit; and unless the creditor or creditors so required to put such bond, bill, or note in suit, shall in a reasonable time commence an action on such bond, bill, or note, and proceed with due diligence in the ordinary course of law, to recover judgment for, and by execution to make, the amount due by such bond, bill, or note, the creditor or creditors, so ...