concurring.
As there is no labor I perform so grudgingly, as writing out a dissenting opinion, I shall be as brief as a sense of duty will permit, restricting myself entirely to the single point respecting which the Court disagree.
The Bank of St. Marys brought an action of assumpsit in the Superior Court of Wayne County, against Mumford & Tyson, on the following note : “ Ninety days after date, I promise to pay to the order of Mumford & Tyson, at the Bank of St. Marys, one thousand nine hundred and fourteen dollars and four cents, value received, in renewal of note for $1,914.
Signed, THOS. BUTLER KING-.
MUMFORD & TYSON.
The defendants pleaded the general issue, and specially, that they had given notice to plaintiffs, to proceed against King, the principal; that they failed to do so in terms of the Statute; and on the contrary, had granted an unreasonable indulgence to the maker of-the note, until he became insolvent; that they signed the note as securities only, &c.
[4.] The question is, can the defendants, in a Court of Law, *58prove by parol testimony, that although joint makers, in point of fact they were sureties only 1
It occurs to me, that there is a preliminary point to be settled first, and that upon the decision of that, this question turns — viz : whether the defendants, admitting that they are sureties only, come within the provisions of the Act of the Legislature, passed 26th December, 1826, and the amendatory Act of 26th December, 1831, defining the liability of indorsers and securities to promissory notes, and other instruments 1 The first of these Acts declares, that “ Any security or indorser, may, whenever he thinks proper, after the note or instrument becomes due, require the holder to proceed to collect the same ; and if he should fail to do so within three months, the indorser or security shall be no longer liable.” Prince, 462. The other provides, “ That in every case which may hereafter arise, where the security or indorser of any promissory note, or other instrument, after the same has or shall become due, has required, or shall hereafter require, the holder thereof to proceed to collect the same, and the said holder has not proceeded, or shall not proceed to do so, within three months after such notice or requisition, the indorser or security shall be no longer liable.” Prince, 471.
I ask, what secwities are embraced in these remedial Statutes ? Is it all who are so in fact, or only such as appear to be securities, from the form of the contract % If the former, then the testimony was admissible. If the latter, it should have been excluded. But can it be supposed for a moment, that the Legislature intended to limit the provisions of these most salutary enactments, in behalf of a highly favored class of persons, to those only who, from the form of the contract, the law made securities ? Such a construction would be to emasculate these Acts of three-fourths or more, of their efficacy. Besides, it is to disregard the plain and obvious language of the law itself. It declares that any security, in every case- which may arise, shall be entitled to this relief. By what right shall we undertake to circumscribe its beneficent provisions to a particular class or description of securities %
But to show that no narrow-minded policy of this sort influenced the mind of the Legislature, look to analogous Statutes, passed at the same time, and upon the same subject-matter, to-wit: the protection and relief of indorsers and securities.. They declare, that when any security to any note, bond or obli*59gation, shall subscribe himself as such, such statement appended to his name, shall be held and taken as good evidence of his being security, and the plaintiff shall sue out original and mesne process against him accordingly. That when it does not appear upon the face of the paper itself, nevertheless, special defence may be made at the trial, to that effect, and the fact established. And further still; that where securities fail to avail themselves of this defence, and judgment has been rendered against them, and drey have been compelled to pay off the execution, they may yet get the control of the fi.fa. in order to remunerate themselves out of the principal, provided it shall be made satisfactorily to appear, that they were bona fide securities only, upon the original contract, which was the foundation of the suit.
Shall it be said that these Acts relate to controversies between securities and principals, and not between securities and holders? I might concede this, and how stands the argument then ? Why, that the Legislature has allowed securities, of every sort, without regard to the form of the contract — all who are such in fact, whether the evidence of it be upon the face of the paper or not at any time, to establish the true relation they sustain to the contract, with a view to indemnify themselves against the principal; and that parol proof is competent in aproceeding at Law, for this purpose ; but as between the security and creditor, or holder of the note, no such relief was contemplated. It does seem to me, with the most profound respect for the advocates of this doctrine, that the mere statement of it carries its refutation.
But how stands this question, independent of our Statute ? Judge Story says — “ That if a creditor does any act, injurious to the surety, or inconsistent with his rights, or if he omits to do any act, when required by the surety, which his duty enjoins him to do, and the omission proves injurious to the surety — in all such cases, the latter will be discharged, and he may set up such conduct, as a defence to any suit brought against him — if not at Law, at all events, in Equity’’ Story’s Eq. Jur. §325. And in a note to the text, he remarks — “ The proposition is thus qualified, because, in a variety of cases, it is certainly very questionable, whether the defence can be asserted at Law, though there is no doubt that it can be asserted in all cases in Equity. It has, indeed, been said by a learned Court, that there is nothing in the nature of a defence by a surety, to make it peculiarly a subject of *60Equity jurisdiction ; and that whatever would exonerate a surety in one Court, ought to exonerate him in the other.” Citing, The People vs. Janssen, 7 Johns. 332. S. P. 2 Johns. Ch. 554, 557. “ But the doctrine,” continues the learned commentator, “does not seem to be universally adopted ; and certainly, it has not be.en acted upon in England, to the extent which its terms seem to import.” Citing, Theobald on Principal and Surety, p. 117 to 138.
Concede then, that in England the doctrine is doubtful, as to the admissibility of this defence and proof at Paw, the weight of American authority is decidedly in its favor.
In Smith vs. Bing, (3 Ohio, 33,) the Court say, “ That the true relation of the parties to the paper, where the obligation itself imports a joint debt, is universally recognized by Courts of Justice, and parol proof admitted to establish its existence.” Indeed, in this case, the principle involved in the point before us, was not denied ; counsel insisted merely, that if the fact of the security-ship did not appear upon the obligation itself, it ought to be brought to the knowledge of the party by some other means, as the creditor is supposed to rely upon the legal liability of the joint undertakers, apparent upon the face and character of the instrument.
In Smith vs. Truro and another, (1 McCord Ch. 451,) Johnson, J. in delivering the opinion of the Court, says — “ It is a matter of common notoriety, that contracts of this nature do not usually distinguish between the principal and the surety ; and that it may and must be proved by parol, is a conclusion which necessarily arises out of the numerous cases growing out of them, and by the numerous rules of law which regulate their respective rights. And 1 take the principle to be, that the relationship which subsists between the joint obligors, is a matter wholly extrinsic of the ivritten contract, and may therefore be proved by parol, without any violation of the rule which prohibits the introduction of parol evidence, to contradict or vary a written agreement.”
Grafton Bank vs. Thomas Kent, (4 N. H. R. 221,) was an action of assumpsit, upon the following promissory note: “ For value received, we jointly and severally promise the President, Directors and Company of the Grafton Bank, to pay them, or order, five hundred dollars, on demand, with interest, after sixty days. (Signed,) AARON HALE.
THOMAS KENT.”
*61The defence set up on the trial was, that Kent signed the note as surety only, and that he had been discharged by day of payment given to the principal, without his consent or knowledge. To the admissibility of the evidence, to support this plea, the plaintiff objected, because it went to contradict the note ; the exact case at bar, in every feature. And the whole Court were of the opinion, that where the maker of a note does not appear on the face of the paper, to be a surety, he is to be treated and considered as a principal, with respect to all those who have no notice of his real character; but that wherever it is material, a defendant may show, by extrinsic evidence, that he made the note as a surety only, and that it was known to the plaintiff that he was only surety.
Suppose that in England and in the States, where some contrariety of opinion exists, as to this question, there had been, as in Georgia, an express Common Law remedy given, for the relief of securities, against the holders of promissory notes ; would it have been doubted for a moment, that the evidence was competent at Law, as well as in Chancery % There they may be driven into Equity, because it is perhaps the only power which can grant relief; but here the Statute itself gives specific and ample redress. And wherever this is the case, there can be no reason why the same rules of evidence, as to written contracts, should not be used in the Courts of Common Law, as in Chancery ; for I repeat, that it is for want of proper remedies that parties are driven into Chancery.
And what principle is violated, by showing the true character of one of the makers, with a view to his exoneration ? Can you not prove the defendant an fant — a feme covert, or a bankrupt, in order to discharge him or her, and that too, while others remain bound 1 Why not also prove him a security 1 The evidence does not go to afiect the original contract in any respect, arid in this particular, is widely distinguished from Stubbs vs. Goodall, 4 Ga. R. 106, and Everett vs. Collins, Ib. 266. At any rate, if this case is irreconcilable with Goodall and Stubbs there is some consolation in knowing that the Supreme Court of New Hampshire, one of the ablest judicial tribunals in this or any other country, is in the like transgression. For that opinion, as this, is sustained by authority, directly in point from that State, as will be seen by referring to it.
But suppose this question were doubtful, what direction ought to be given to it by a Georgia Court, where it is the manifest de*62sign of the Legislature to break down the wall of separation between Law and Equity, and to suffuse the two jurisdictions ? "Why were the Superior Courts in this State clothed with Chancery powers ? The Act of 1799 sufficiently answers this inquiry. There were cases where a Common Law remedy was not adequate. Prince, 1st ed. 218. And it was to meet this mischief that Equity jurisdiction was bestowed. Is it not unreasonable, therefore, to send a security to a worse and more expensive tribunal, to make a Common Law right available ?
All power, whether judicial, political or ecclesiastical, is aggressive and accumulative. Crescit cundo, is its motto. Courts are not exempt from this master principle of the universe, as their history abundantly demonstrates. The jurisdiction of the Court of King’s Bench, was originally confined to pleas of the Crown; but now, ail actions are admissible within its walls, through the medium of a legal fiction, adopted for the purpose of enlarging its authority, that every person sued, is in the custody of the Marshal of the Court, and majr therefore be proceeded against for any personal cause of action. The Exchequer has adopted a similar course; it was confined, originally, to the .trial of revenue cases ; it has, however, by means of another fiction, the supposition that every body sued is debtor to the Crown, and further, that he cannot pay his debt, because the other party will not pay him, opened its door to every suitor.
So, too, it has been with Equity. It had its origin in the rigidity of the rules and remedies provided by the Common Law. The grant of Chancery jurisdiction, in 1799, to the Superior Courts, by the Legislature, had its origin in the same cause. And what do we hear in 1820 ? Why, a complaint, by the Legislature, that under the construction of this grant, the Equity side of the Court had drawn to itself, exclusively, all cognizance of the cases in said section enumerated, even where said cases depend upon aliunde proof, to the manifest embarrassment of justice in many cases, and to the injury of the good citizens of this State. Prince, 447. Parties are thereafter authorized to sue, in all cases, upon the Common Law side of the Court, whenever they can establish their claim, without resorting to the conscience of their adversary. And to encourage suitors in this forum, it is further provided, that after the commencement of the action at Common Law, the party may, at any time during the progress *63of the suit, file a bill for discovery, in aid of the action at Law, And not content with this, by the Act of 1847, (Pamphlet Laws, p. 197,) plaintiffs or defendants, in any action at Common Law, may compel discovery, in answer to interrogatories merely.
As for others, let them do whatever a sense of duty to themselves and the country shall dictate. For myself, I shall not be found fighting to the water’s edge, to uphold the tottering fabrics of superannuated systems. I believe that the Legislature is only keeping pace with the spirit of improvement, which so signally characterizes the age. Conservatism in law, as in politics, may be carried too far; it may dam up the current of wholesome and necessary reform, until it shall sweep over all barriers and restraints, and desolate, by its sudden and irresistible flood, much that is valuable.
The useful arts must retire before those which are more useful. Old dispensations must give place to those which are new and better. As well may the forest, which answered its day, by refreshing the hunter in the toilsome chase, complain that it is cut down to make room for the corn and the fruit-tree, as that Equity should insist that the suitor should enter her gates alone, for relief, where there is a Common Law right given, and a Common Law Court can do complete justice to the parties.
I concur, fully, in affirming the judgment of the Court below, in admitting the parol testimony, to show that the defendants, although inform, joint makers, were in point of fact, securities; and as such, upon proper proof beingmade, entitled at Law, to the relief furnished by the Acts of 1826 and 1831.