Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-21
DECISIONS OF THE >UPREME COURT.
OFF GA L

Opinions of the Supreme Court of the
state of Tennessee, at Jackson April
Term, 1859
Joseph Mitchell and Others Sampson Burton and o-her
Bradford entered into a covenant with the PLAIN
tifs as commissioners of the FOrfed Deer RIVER 10
make certain improvements In the RIVER therein ue
sinated and the other defendants became his sure
ties in his penal bond for the faithful performance
of his undertaking. , o.,
A large amount was advanced to him, end he fail
ed to perform the work. This action OF covenant
was brought to recover BACK the amount pau NM
the contract,
The suit Is defended by most rare and voluminOus
pleadngs joint and several But the case Is pre-
scented to us upon few simple questions. lhere
was recovery against Bradford but all his sUretles
were discharged by tie verdict of the jury and the
judgment of the Court. From this the plahuhS ap
pealed. except as to Bradford.
The facts so fal as they are to be stated. for the
ouestions before us are that the bond of Bradford
was signed by himself, E. W. Upton, p. Il. Upton
and s. G. Gillespie, and presented to the Commls-
sioners then in session for acceptance, when 1t was
agreed that Z. w. Upton could not properly be
surety rs he was one of the Commissioners where
upon they erased his name, without the Knowledge
or consent Of theO Their sureties- Upton anu
Gillespie After that Bradford procured the defend
ants Sampson and Burton to enter their names TO Inc
same bond as his suretes. 7. NJ. Upton anu GlileS-
pie ioin in plea setting up the above facts Inc
Judge properly charged the jury that II the JOINT
erasure of his name without their appreciation or
any subsequent acknowledgement or ratlcatlon on
their part they were not bound. This Is too PLAIN
for argument.
But as to sampson and Gurton the case is very
different They also Join in plea setting up the
defence that they signed the bond after the other
defendant and upon the faith OF Their beng bound
and without any knowledge or information that they
were not bound, that the written obligation haG
been altered by the plaintiffs and they aver that SAID
bond had been altered by the plaintiffs after the sig
nature of the other defendants, and without their
consent, by striking out the name OF l.. W. Ilptoh'
and which fact was concealed from thenl
Upon this part of the case, the Court lald down
the law to the Jury thus: las to the Case OF Samp
son and Burton the jury should examine the proof
and see If they signed the contract upon me Oet tI
| p NJ. Upton and Gillespie were bound, ana II not
| but thev had been discharged by the act OF the
plaintiffs in the of the name of T. W. llpton
and they did not inform them of that fact before te
signed the paper as l5ds their duty to do, II wOul
be fraud upon them, and they would not be bound.
In this we think there is manifest error. The Cd
| liberation occurred before the bond was signed by
them. 1t was palpabe TO their observation lhey
knew the fact for it was before them. They signed
| with that knowledge. The plaintiffs concealed noth
| ing from them; all that tley had done and the lact
complained of, visible. 1t may De rue that
! they did not know by whom 1t VAS done, nor tillI
the circumstances were such to discharge the JOINT
Obligers before thenl-P. NJ. Upton and UlheSPle:
But that was their own fault they were or should
have been put upon the inquiry by the ODhterdtiOh
of the name, and should have satisfied items selves
before they signed, to the circumstances. IL may
be true also that even they knew all the facts and
circumstances correctly and fully, still, they may
not ha ,e been aware as matter of law, that the
effect of the release of one obger would discharge
the others then on the bond. If they did not know
the law OH this subject. 1t their misfortune not
the fault of the plaintiffs. There was no fraud con
,alment or mistake of facts and ignorance OF the
law is no defence in such case. So we think
Sampson AMI Burton were improperly discharged
because of the error il the instruction OF the Court
and therefore reverse the Judgment and grant new
trial
| CARUTUERs.