Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-11
DECISIONS or THE sUPREmE COURT.
Opinions of the Supreme COurs of the
state Of Tennessee, at Knoxville, sep-
TENDER Term, 1883.

Opinions of the Supreme Court Of tn e
state Of Tennessees at Knoxville, sep-
TENDER Terms 1853.
Klncaid vs. Sharp.
Sharp recovered Judgment against one Hously,
before Justice Of Campbell county, on bill single
for S23300 on the 30th Of Nay, 1851. The case was
removed into the Circuit Court, st the instance Of
HOusly, by certo Tari, granted By two Justices. At
the return term, Hously was allowed to ME an
amended and supplemental petition, upon c0ndltlOn,
that he should give good and sufficient security
during that term for the prosecution CT the writ.
On the next day, Kncaid, the plaintiff in error ana
four other persons appeared and entered IN recog-
niZance before the Court, which was spread upon
the record obgating themselves that if the defend
ant, HOusly were cast in this suit che shall pay al
costs that may be awarded against him, and shall
well and truly pay and satisfy whatever judgment
the Court may render in this cause, or they the
said John KincRd ("snd four others by name
twill do II for him."
At a subsequent term OF the -Kincaid
having given to Hously the five days, notice re-
quired by lGw-it was ordered by the Court, shat
before Friday the 10th instant or the sad JOnn
Kincaid viii be released from further liability as
security and defendants petition dismissed
Before the expiration Of the time limited, the
Northumberland to the Court by affidavit that he
was unable to give the counter security required by
the rule made upon him, and asked 20 be permitted
to prosecute the writ of certiO rari IN fOTBG dpels
and having made the prescribed affidavit, he was
allowed to do so. Thereupon it was ordered, that
the rule for counter security be discharged and 1t
was further ordered chat John Kincaid, the said
security be released from costs hereafter accrulng
To all which proceedings there was no exception by
either of the parties.
At subsequent term the case was submitted to a
jury, and a trial had on the merits, which re-
suited in verdict in favor Of the plaintiff, affirming
the Justices judgment; Whereupont Court render
ed judgment jointly against the defendant and said
Kncaid and his cosmetics in said recOgnzance, for
the amount of the Justices judgment, with twelve
/ and a half per cent per annUm thereon, together
with the costs Of suit up to the day OF klncalds
discharge, and against the defendant alone for the
residue Of the costs. And from this judgment
/ Kincaid appealed in error to this Court
This proceeding to obtain counter security, was
instituted under the provision of the Code, 1868
whieh is as follows Sureues for the prosecution
or defence of ana suit IN lao or equity in this State
may be released from such suretiship, by giving
five days notice to the plaintiff if in the State, and
to his attorney if out of the State, Of his intention
/ to move for rule upon him, to give counter secu
riy to indemnify him against liability as such sur
| ety. The following section provides that, upon
notice thus given, the Court or Justice shall make
rule requiring the plaintiff within given time to
/ give such counter security and on failure OF the
plaintiff to comply with the rule, the Court Will dis
miss the suit and give judgment against the pam
/ tiff and his surety for the costs already accrued.
By section 3l3l, the Clerk is required, before Is
suing writs of certiOrari and supersideas to take
bond from the party applying. with good security
| in double the amount of the Judgment or error
complained Of, payable to the opposite party con
ditiOned to prosecute the writ with effect. peform
the judgment which shall be rendered in the cause.
| And by section 3l37, it is provided that upon af
! firmance Of the Judgment or decree below, or re
cOyery Of large amount or upon dismissal Of the
certio rar for want of prosecution for any other
cause, the Court shall enter up judgment for the
| amount recovered against the principal and the
suretes to the prosecution bond with interest 1t the
rate of twelve and one half per cent per annum
from the date of the Judgment decree below, anc
| all costs.'
We have cited these several sections Of the Code
because the questions arising upon this record IN
| volve their construction.
1t is supposed that section 1865, and the following
sections do not apply to case like the present; but
only to the sureties of the plaintiff in any suit and
not to the sureties of the defendant This provision
is inartifcially framed, and Is incomplete ard wan
ting IN technical accuracy and precision; yet with
out a departure from the established principles OF
construction, the defects may be supplied, so to
carry out the obvious intention Of the legislature
| Section 5000. begins with the general provision
that the sureties for the prosecution Tor defence Of
| ana suit in law equity may be released &c
| These words comprehend the present, and every
! other sUppOSable case, and although from the fol
lowing words in this and in section $685. The rene
DIV would seem to be restricted to the sureties Of
but one party the plaintiff yet Is clear that such
was not the intention of the law. There be no
| doubt but that the remedy was designed ID apply
in favor of suretes in all cases, irrespective of the
attitude of the parties, plaintiff or defendant
In reason the law ought to apply well in favor of
the sureties Of the defendant. in cases where, by
statute the detendantss required to give security
as of the plaintiff and 1t would have been not only
unjust, but absurd to have Disseminated between
them.
The omission of the word defendant must there
fore be supplied the word plaintiff must be taken
to mean the actor or principal for whom the applt-
cant surety is bOundI
But. it is further insisted that conccding the
remedy to be applicable to the surees Of the party
defendant on the record there is authority given
to subject the discharged surety to any liability
whatever except for the costs Acknowledgements
ed This. it is true, Is the letter Of the law
and it is another singular omission; but one which,
think. may be supplied, IN view OF the intention
of the Legislature. by constituting in connection
with this section, the sections before cited-3,l5l,
3l37 1t must be taken to have been the intention
of the legislature that in either event, the court
should render such judgment as, under the CiTCum-
stances, might be appropriate, and in accordance
with the established rights of the parties The OBJ
lection resolves itself merely into this that it was
omitted to express that which from the whole scope
and object Of the law, Is necessarily implied. If
the certiO rari had been dismissed for nUn-cOmpi-
ancc with the rule it will be conceded that judg-
ment must have been rendered against the surety
for the debt as well for the costs which had aC-
crued, though this is not declared. And upon the
same principle, though the rule may have been com
piled with, a like Judgment must be rendered
We cannot suppose, either from the letter or
spirit of the law, that anything more designed
than to exOnerac the surety thus discharged from
subsequent liability. We not to suppose that it
was intended TO absolve the discharged surety from
anv legal liability with which he had become fixed
previous to his discharge. The liability of the
ty in the present case, was fixed by his recOgnZanCe
and from ths-eXCept as to costs accrulng Subse-
quent to his discharged was not intended to dis
charge him. The security which may be demanded
bV the surety, e counter security to indemnify
han against MS liability, as such surety" And
while it is true that the giving Of such counter
curiv inures to the benefit of the adverse party in
the suit yet this not the object of the law it
was if possible, to save harmless the first surety
Hence the effect of such counter security not to
discharge the previously fixed liability of the first
surety. That remains before. He Is only re-
lieved from future costs with the further right to
demand, that-in counter security has been
givcn-the latter sureties shall be first made liable
to discharge the final judgment which may be rem
dered in the case But whether or not counter
curity be given, the first surety IS unquestiOnqbly
liable upon his bond in the eventthe condition there
of shall rot have been performed by his principal,
except as to the costs OF suit which may have
Crued after the the time of his discharge.
The exceptions to the reCognizance are not tena-
bic. True, the statute directs that "bOnd shall be
taken but unquestionably, obligation Of record
entered into before the court is for all practical
The recOgnizance does not in express terms,
bind the party to prosecute the suit with effect
nor is it in terms to the opposite party These
omissions, however, under the modern practice Of
our courts, are unimportant, and will be supplied
if necessary-by intendment OF law, The Objec-
ton. that the reCognizance contains no penalty Is
alike untenable The undertaking of the surety
of record is that the defendant will pay and satisfy
whatever Judgment the court may render in the
case; and this Is in substantial compliance with the
requirement of the law.
No question has been made as to the power Of
the court to permit the defendant to further prose
cute his certio rari without security.
BY sec. 3l33, it is provided that no S1pasedeaS
shall issue upon application IN tOrnG pauperS. with
out express order Of the Judge dispensing with
curitv" The question, whether no: this
proper case for dispensing with security, and
whether or not the action Of the court in this
was equivalent to express order Of dispensation
not being made-will be left undetermined until
properly presented.
Judgment affirmed. NCkINNEY.
A true copy, test: c. W. NELSON, Clerk.
N. Goldman, vs. The justices Of Granger county.
Goldman presented his petition to the County