On petition eor a rehearing. '
Howk, J.Since the opinion was filed in this cause, reversing the judgment of the trial court, the appellee has filed an earnest petition for a rehearing. The questions arising under this petition, and, indeed, the entire merits of the cause, have been ably and exhaustively argued, before the court as now constituted, by the learned counsel of the respective parties, both orally and in written and printed briefs. It is due to counsel, and, perhaps, to oursfelves, that we assign the reasons as briefly as we can, which have led us to the conclusion that a rehearing of the cause ought not to be granted.
The case is fully stated in the original opinion, and no repetition is necessary to a clear presentation of the grounds upon which the appellee has asked for a rehearing. By the record of this cause and the appellant’s assignment of errors thereon, two questions were fairly presented for the decision of this court, which may be thus stated:
1. Was the appellant discharged or released from liability on the note in suit in the first paragraph of the complaint, by reason of the alteration of the note without his knowledge or consent ?
2. Was the appellant, as surety upon the notes in suit in the other three paragraphs of the complaint, discharged from all liability thereon, by reason of the matters stated in the fifth paragraph of his answer ?
These two questions were carefully considered by the court, in the original opinion, and, upon the agreed facts in relation thereto, as contained in the record, each of them *332was decided adversely to the appellee and in favor of the appellant.
1. In regard to the first question, the decision of this court is not attacked, by the appellee’s counsel, with much zeal or apparent confidence. One of the briefs, in support of the petition, contains this candid admission : “ As to the first point decided, the writer of this did not feel the utmost confidence in! the objection urged, nor does he now feel entirely assured that it is erroneous.’-’ 'We are entirely content with the point decided, and can add nothing to what was said in the original opinion, in our consideration of the first question above stated. The agreed facts showed very clearly, we think, that the alteration of the note was material, and that it was made without the knowledge or consent of the appellant, and without his authority express or implied. Such alteration vitiated and avoided the note, and discharged and released the appellant, as the maker thereof, from all liability thereon. This conclusion is in harmony with repeated decisions of this court.
2. As to the second question, the appellee’s counsel very earnestly insist that this court erred in its decision, for the following reasons:
1. The statute does not apply to the notes in suit in the last three paragraphs of complaint;
2. The notice by appellant to appellee, to sue, etc., was not sufficient;
3. The service of such notice was not such as the law requires;
4. The proof of such service was insufficient; and,
5. The fifth paragraph of answer was bad, and therefore the judgment ought not to have been reversed.
All of these reasons, except the first and fifth, were examined and considered by the court in the original opinion ; and we then held, for reasons there stated, that the notice to sue, the service of such notice, and the proof of *333such, service were each sufficient in law. We are satisfied with the decision rendered on these three points, and we deem it unnecessary to extend this opinion in any further discussion of those questions.
In reference to the fifth reason assigned for the conclusion of counsel, that the court had erred in its decision, it is enough to say that the sufficiency of the fifth paragraph of answer was not called in question hy any assignment of error or cross error in this court. We may add, however, that we think the fifth paragraph of answer was probably sufficient to withstand the demurrer thereto for the want of facts; hut the question is not properly before this court, and we need not decide it.
The first reason assigned above is, that the statute of this State, providing the remedies of sureties in written contracts for the payment of money or the performance of any act, is not applicable to the notes in suit in the last three paragraphs of the complaint. These notes were the joint and several notes of one Solomon B. Mottinger and the appellant, payable at a hank in this State and negotiable as inland bills of exchange, and endorsed to the appellee before maturity, for value and without notice at the time that the appellant was the surety of Mottinger in such written contracts for the payment of money. It is claimed hy the appellee’s counsel, as we understand their position, that, because of the facts last stated, the appellant became liable, as a principal, to the appellee, on said notes; and that, for this reason, the appellant could not, after the maturity of the notes, avail himself of the remedial provisions of the statute, in favor of sureties, for-his own protection from loss. In other words, it is claimed by counsel, that such written contracts for the payment of money, under such facts, do not come within the provisions of the statute providing remedies for sureties, and that the appellant, although in fact the surety only of Mottinger in such con*334tracts, could not, after their maturity, avail himself of those remedies, as against the appellee.
We can not adopt or approve of the position of counsel, on the point under consideration, although it is to some extent supported by authority. The authorities, however, are in conflict upon the point, and in such a case we are at liberty to adopt the view which seems to be more nearly in consonance with the general principles of right and justice, as between the principal, the surety and the creditor. The provisions of sections 672 and 673 of the code, in relation to the remedies of sureties against their principals, as between them both and the holders of their written contracts, were intended to be a substantial re-enactment of the provisions of sections 1 and 2 of chapter 51 of the Revised Statutes of 1843, p. 954, on the same subject-matter. In said section 1 of the revision of 1843, it was provided, that “ When any person bound as surety by bond, bill, note, or otherwise, for the payment of money,” etc., should apprehend, etc., it should be lawful for the surety, if an action had accrued on any such contract, “ to require, by notice in writing, the creditor or obligee forthwith to put the bond, bill, note, or other contract by which he is bound as aforesaid, in suit;” and section 2 provided, as section 673 of the code now provides, that if the creditor should not' proceed, within a reasonable time, to bring his action upon the contract, and prosecute the same to judgment and execution, the surety should be discharged from all liability on the contract. Substantially the same provisions, with the same specific mention of “ bond, bill, note, or otherwise,” may be found in the Revised Statutes of 1824, p. 377, and were brought forward through the revisions of 1831 and 1838, and were embodied in the revision of 1843, and have been, in substance, re-enacted as sections 672 and 673 of the code of 1852, which are now in force ; so that it may be fairly said, -we think, that these provisions in regard to the *335respective and relative rights of principals, sureties and creditors, have constituted a part of the law of this State for more than half a century.
Erom this brief review of the legislation of this State, bearing upon the point we are now considering, we are clearly of the opinion, that, whatever may be the law elsewhere, it is certainly the law of this State, and has been for more than fifty-seven years, that any person bound as surety upon any bond, bill of exchange, promissory note, whether payable at a bank in this State or generally, or any other contract in writing for the payment of money, etc., after the maturity thereof, may require, by written notice, the creditor or obligee forthwith to institute an action upon the contract; and that if such creditor or obligee shall not proceed within a reasonable time to bring his action upon such contract, and prosecute the same to judgment and execution, the surety shall be discharged from all liability thereon. This, we think, is a fair interpretation or construction of the law now in force, in the light of the previous legislation of this State on the question now under consideration; and this conclusion is in strict accord and harmony with those principles of equity and good conscience, which should govern and control the respective and relative rights of the principal, the surety and the creditor or obligee, in any written contract for the payment of money or the performance of any act, under the provisions of the code.
The petition for a rehearing is therefore overruled, at the appellee’s costs.