#### ABEL COX v. JOHN D. BROWN.

Where a contract binds a party, collaterally, to answer for the default of another, as in the case of guaranties, and the like, notice must be given of such default before an action can be maintained for a breach of the contract.

The act of 1848, Rev. Code, eh. 65, sec. 10, saving causes of action against non-residents from the operation of the statute of limitations, applies to causes of action existing at the time the act went into effect, provided they had not been barred by a previous act of limitations.

AotioN of assuMpsit, tried before Dice, J., at the last Eall Term of Eandolph Superior Court.

The plaintiff declared on a guaranty, endorsed on a bond of $200, payable to him, defendant, by one Jesse Bray, and dated the 4th of April, 1839. The endorsement was as follows : “ I guarantee the payment of the within note to Abel Cox, for value received.” Signed John D. Brown.

It appeared on the trial, that a suit had been brought in the name of the defendant, to the use of the plaintiff Cox, against Bray, which was tried at the Spring Term, 1848, of Eandolph Superior Court, and that a set off of $90, was thereupon established and allowed against the bond in question.

The plaintiff insisted below, that he was entitled to recover the said sum of $90, with interest. There was no evidence that any notice had been given to the defendant of the allowance of this set off, or of a demand to make good the guaranty, previously to the bringing of this suit. It appeared that Brown had, before the trial in 1848, removed to a distant State, and that he had permanently resided there ever since. The defendant relied on the want of notice to the guarantor, 'or a demand for payment of the damages, previously to the bringing' of the action, and upon the.statute of limitations. •

His Honor directed a verdict to be rendered for the plaintiff’s demand, subject to the opinion of the Court, upon thej questions of law raised between the parties.

Afterwards, his Honor being of opinion with the defendant' upon the points reserved, directed the verdict to be set aside" *101and a nonsuit entered; from which judgment the plaintiff prayed an appeal to the Supreme Court.

No counsel appeared for the plaintiff in this Court.

Gorrell, for the defendant.

Battle, J.

It is now too well settled to be considered a debateable question, that where a contract binds a person col-laterahy, and depends upon the default of another, notice ought to bo given of that default, in order to charge the person who is secondarily liable, as in the cases of guaranties and the like; Grice v. Ricks, 3 Dev. Rep. 62; Sherrod v. Woodard, 4 Dev. Rep. 360; Adcock v. Flemming, 2 Dev. and Bat. R. 225; Reynolds v. Magness, 2 Ire. Rep. 26; Lewis v. Bradley, Ibid. 308. In the case now before us, therefore, the plaintiff ought to have notified the defendant of the damage which he had sustained on the guaranty before the commencement of his suit against him. The reason why this notice is required is, manifestly, for the purpose of giving the guarantor an opportunity of paying the damage without being harrassed with the trouble and expense of a law-suit. On the question of notice, then, our opinion is in accordance with that which was expressed by his Honor in the Court below ; but upon the question of the statute of limitations, we are inclined to differ from him.

We have seen, that until the plaintiff has given the defendant notice of the loss which he had sustained on his guaranty, he had no right to sue him, and it might be argued that until he gave the notice, he liad no cause of action against the defendant, and that, therefore, the statute would not begin to run until that time. It has been contended, however,, that if the plaintiff delay, for more than three years after be has been damnified, to notify the guarantor thereof, and thereupon commence his suit against him, he will be barred by the statute. However that may be, we are of opinion, that the operation of the statute was prevented from the present case by force of the act of 1848, ch. 59, (see Rev. Code, *102chap. 65, sec. 10,) which provides that “ when any person, against whom there is cause of action, shall be beyond sea, ©r a non-resident of the State, at the time such cause of action accrued, the plaintiff may bring his action against such person, after his return, within the times as are herein before limited for bringing such actions.” It is true, that this statute was passed after the plaintiff had sustained the loss on the guaranty, which was in the spring of 1848; but the cause of action was then subsisting, and had not been barred under any previous statute. As the defendant had before that time left the State, and was then a non-resident, there was nothing, either in the spirit, or letter, of the act to prevent it from applying to his case. Had the action been barred by a previous statute of limitations, then it might well have been contended' that the latter aet could not, fairly, be construed to revive the el'aim as against the defendant upon hi? return. Such a construction, we held ourselves bound to adopt upon a similar aet on the case of Phillips v. Cameron, 3 Jones’ Rep. 390. Here the circumstances are different. The cause of action had just accrued (supposing that it could accrue before notice was given,) and was still subsisting when the last act was passed, and the act, therefore, might well stay the operation of the previous statute of limitations until the defendant should return to the State. It was certainly competent for the Legislature to give the act* relating, as it did, to the remedy only, a retrospective effect; but we would not like to pint a construction upon it which would give it such an effect, unless it could be supported upon express words or a necessary implication. The present case does not require a resort to such a construction, as it is fairly embraced in the- words “against whom there is eause of action.”

Though we differ from his Honor upon the point of the statute of limitations* yet, as we agree -with him upon the question of notice, the judgment of nonsuit must be affirmed.

Pee CüRIAm, Judgment affirmed.