Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-05-06
OFFrrIAl.
Opinions Of the Supreme Court Of the state
OF Tennessee, delivered at Nashville, az
Deccmber Term, 1858.



This vas a action OF covenant BY Marks against
4 Oliver snd Gilliaw, in which ih,rs was recovery
| for 81. I2e, upop his bond
( estate Of TenasSsee- We, 4 Oliver and Samuel
Z Gilism are held IN firmly bound unto L q Marks
! IN the scfu Of 81 coo upon the condition that
zkcreas lhe said Marks IS the endorser upon no,e
I 5raHn By IRA Brown fos Sl,GGa, ami endorsed to
: she Planters tnk, Bpon which suit IL row pend
leg IN ae Circuit Court OF Giles comfy in favor OF
said Bank against said Brown and Marks New in
consideration that the said Marks shalt not canf,ss
Judgment AZ the present term Of sid Court as to
take judgncnt overagsinst said Brown. We the said
Oliver sal Gillian hereby cgree u fully indemnify
and bold the said Marks harmless such enlOrseT
aud well ana truly pay 10 him all sums Of money
which he may have TO pay ia consequences Of said
suit : Dec n, 1851 "--sigAsd under
seal
Il is admitted in the case, that ore Trigg was
The first aud Marks the sesond accommodation en-
dorses upon the note then ia suit.
Marks compiled vita bis agreement, and judg
meot was aiterWards CD aimed against him and be
was eoerced 10 psy the suai Of Sl054 By execution,
on 12th July, 1853 Yhereupoa he Instituted this
action upon the bond. The sum Of SIPS was
RENTED ard the Judgment reduced to 81 coo, the
penalty Of the bond.
The dsfences are
l. That there is no consideration. The quss-
ton Of s seal implying a consideration aside, it
vas Brovsd thst MARKS was Accommodation endoF-
ser for Brown that he proposed to confess judgment
at the appearance term, December, 1851, for the
purpose { taxing judgment against Brown. his
principal by motion, who was then entirely good,
and solvent, bus refrainsd from doing in couse>
quence Of this bond Of indemnify, and bsfore the
next term, at which judgment was taken, BroEn
had removed his personal properly from the State,
and that his land taken by decree in the inter-
mediate time, 30 that this de5t could not be made
out Of his properly but fell upon the plainIf and
was paid By him The Court charged that this
sufficient consideration for the undertaking Of de-
PENDANTS. OF this there can be no doubt; il needs
no argument.
2 The Court being requested, refused TO charge,
that before the plsinUf could upon this cove
nant he was bound to show that he had pursued and
exhausted his remedies sgains, Brown, and the es-
tate Of Trigg, the first endorssr. There was proof
that Trigg's estate probably solvent, and that
he was FIRST eBdorser upon the note sued upon BY the
Bank But the Court instructed the Jury that It
vas suf6 silent to maintan this action, that BroRn
had no properly out Of which the money could be
made, and that the plaintiff had been compelled to
pay it.
This was correct. The bond contained no such
conditions. The undertaking Of defendants with
Marks was that In consid ration he would not
adopt the summary course the law slloEed him to |
make himself safe BY subjeetiDg the property Of y
Brown which was then ample, 20 the pawn snt Of I
the debt, he should be fully "iudemuifed" and [
saved ''hsrress," as "eudorssr;" and these parties
obligated themselves "to pay 20 hin ell sums Of I
money which he may have TO pay in consequences Of
said suit Such is their bond, aud no additional 4
terms By Implication can bs inserted He is lot
bound to encounter the delay expense. and risk Of
pursuing ether remedies that NAV possibly be open
10 him They have afforded him an ample one
without any precedent conditions. other than the I
,ompulsiTe payment Of the money in that suit, and
he has perfect right to adopt it, in preference TO
10Y other that may be indolted, and TO which he
ight resort IL this were to fail or did not exist.
lie has sustained loss as 1t is, in consequence Of
heir interference, to the extent Of the excess over
he penalty Of the bond and costs as he could have
iaved himself entirely by the course he was pre-
rented from adopting by the execution Of this
bond Let the judgment be affirmed.
CA2UTHERs.
A correct copy. Attest, J. P CLARK, Clerk.