Nathan Clifford

“ Judicial decisions of high authority deny that the indorser is to be regarded as a surety after his liability is fixed by due presentment, demand, and notice of the dishonor of the note, and insist that when his liability is fixed by those acts of the holder, that he, the indorser, becomes a principal debtor himself, subject only to the condition that the holder shall do no act to suspend, impair, or destroy his remedy over against prior parties to whom he has a right to resort for a remedy ”

“ He may be security in many ways, as indorser or as maker.
It will not do to say that a party cannot, as an indorser, be a security. The utmost that the law, independent of the statute, declares, is that he is not such by virtue of the relationship. And it has been always held that he might prove himself so in fact, in order to entitle himself to the rights of a security as against the principal. ”

“ But the statute of Arkansas gives a specific right to this remedy to 'any person bound as security for another in any bond, bill, or note,' &c. And the facts alleged in the plea, which are admitted by the demurrer, make him a security within that statute. The statute certainly contemplates that a party can become connected in some way as 'security' in a note. But how can he become so more fitly than in the way here resorted to? His being a security is a matter of fact, and does not at all depend upon the form of his relation to the note. ”

“ A bad rejoinder is good enough for a bad replication. The effect of demurrer, in such case, is to reach back to the replication.
In such cases judgment must be given against the party committing the first fault in pleading, which is here the plaintiff's. And if the demurrer be sustained, the judgment should be against the replication, and the court erred in not so deciding. If the judgment on the demurrer is right, then the plea of the statute of limitations is unanswered, and as the plea is a good bar, the final judgment should have been for the defendant. ”

“ Though all the other parties are sureties in respect to the maker, still they are not co-sureties, but each prior party is a principal in respect to each subsequent party.
An indorser of a promissory note, though in the nature of a surety, is not for all purposes entitled to the privileges of that character, as he is answerable upon an independent contract, and it is his duty to take up the note when it is dishonored. ”

“ Indorsers, it is sometimes said, are sureties, but their contract, which is a new one as compared with the marker of the note, differs in some important respects from that of the surety, who is a joint promisor with the principal, as the holder of such an instrument is under no obligation to use diligence to enforce payment against the maker in order to hold the indorser. ”

“ Mere indulgence or delay by the holder to sue the maker, will not discharge the indorser. There is no obligation to use the diligence, as is generally the case against a principal, in order to hold a surety liable, at least where the surety calls upon the creditor to act. ”

“ Where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature, for statutes are not presumed to make any alteration in the common law, beyond what is expressed in the statute. ”

“ Remedies of a statutory character, where the right to be enforced was unknown at the common law, are to be followed with strictness, both as to the methods to be pursued and the cases to which they are to be applied. ”

“ Hence the law encourages their use as a safe and convenient medium for the settlement of balances among mercantile men, and any course of judicial decision calculated to restrain or impede their unembarrassed circulation would be contrary to the soundest principles of public policy. ”

“ It has never been held in England that civil war and commotion in any manner arrested or suspended the laws, except between communities as to whom belligerent rights had attached, and non-intercourse had been declared. ”

“ Statutes passed in derogation of the common law, it is everywhere held, should be construed strictly, nor is there any subject-matter to which that rule should be applied with greater intensity than where the attempt is made to change by local legislation the rules of commercial law, applicable to that class of commercial instruments. ”

“ That he is competent to bind himself in such a contract. (4) That the maker is competent to bind himself to the payment, and that he will, upon due presentment of the note, pay it at maturity. (5.) That if, when duly presented, it is not paid by the maker, he, the indorser, will, upon due and reasonable notice being given him of the dishonor, pay the same to the indorsee or other holder. ”

“ Extended discussion of that topic is quite unnecessary, as the oft-repeated decisions of this court have established the rule that the statute of limitations was suspended in the rebellious States during the existence of the late rebellion, and the express decision of this court is that the war was flagrant in that State for the whole period specified in the replication filed by the plaintiffs. ”

“ He continues indorser, with all the privileges of a surety.'
I. As to the first error assigned.
The replication does not rest on the act of Congress so much as it rests on what this court has adjudged in several cases since the war broke out, and especially what it adjudged in Batesville Institute v. Kauffman, [7] and where it held that the war was flagrant in Arkansas from April, 1861, to April, 1866, and that the courts of the United States, in contemplation of law, were closed during that time, and that hence the statutes of limitation did not run during it. That is all matter of law. ”