This was an action of assumpsit in the usual form, on a joint and several promissory note, executed by the defendant below and one Warren; and payable to the plaintiff. In a special plea, the defendant averred, that the note declared on was given for money loaned by plaintiff to Warren, and then proceeds, “ and defendant further avers, that the said. Calvin A. Warren was the principal in said promissory note in said declaration mentioned, and that he the said defendant signed said note as security for the said Calvin A. Warren, and become bound as security in said note for the payment of the money therein specified, and not otherwise.” The plea then avers that after the maturity of the note, the defendant notified the plaintiff- in writing to put the note in suit which he did not do, within a reasonable time.
This defense is set up under the first section of the ninety-seventh chapter, Rev. Stat., which provides that, “ when any person or persons shall hereafter become bound as security or securities upon any bond, bill or note,” etc., and he or they shall apprehend the principal may become insolvent, it shall be lawful for him or them to give notice in writing to the holder of the note, etc., to forthwith put the same in suit, and proceed with due diligence to collect the same; and if he shall, neglect to do so, the holder of the note shall forfeit his claim against the security or securities. In describing the character in which the defendant executed the note, this plea literally follows the statute. It states that he executed the note as security, and that only in that character did he become bound by it. In this, as in all other respects, is the plea drawn in strict conformity to the statute. In order to sustain this plea it must appear, on the face of the note, that he signed it as security. The statute has reference to the character assumed by the party when he signs the note. When the payee takes a note thus executed, he knows, as a matter of law, that he is liable to be called upon by such party to proceed at once to put the note in suit so soon as it becomes due; and he consents to accept the undertaking of the security, with the qualification thus attached to it by the law; and in any transfer which may be made of the note, the assignee is notified by the face of the paper of this right of the security, by a notice in writing to compel him to institute an action upon it, or release him from his undertaking. There could have been no necessity for averring that the payee had notice of the character in which the security executed the note. The statute requires no such averment, and for the simple reason that if the character of security is attached to his signature to the note, that is, of itself, direct and express notice of that fact, of which neither the maker nor any subsequent holder can aver ignorance. In the case of McAllister v. Ely, 18 Ill. R. 249, we held that a plea in this language of the statute was sufficient ; and we are still of opinion that the statute means what it says.
The judgment must be reversed and the cause remanded.
Judgment reversed.