Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-24
DECIsIoNs OF THE SUPREME COURT.
OFFICIAL.


opinions OF the Supreme COnrt of tn G
state of Tennessee, at JacksOns April
Term, 1859.
Goodwin vs. The Farmers Merchants Bank Of Memphis
This was suit instituted against the plaintiff in
error as the drawer Of bill Of exchange.
He resided at Memphis, Tennessee, when the bill
was drawn, and Stephen Franklin the drawer, re-
sided at New Orleans, upon which place the bill was
drawn.
Judgment being against the plaintiff in error, he
moved for a new trial, which was irefused by the
Circuit J udge and thereupon he filed bill Of ex-
ceptions embracing the entire evidence in the cause
and the Judges charge and has appealed to this
Court.
new trial
The verdict is totally unsupported by the evil
In order to charge the defendant as the drawer Of
this bill it was indispensable that the plaintiff should
prove that he had due notice Of its dishonor The
only evidence in the record upon this subject Is de-
rived from the testimony Of VIM. O. LOfiiand. He
states simply, and in many words, mat TIE defe-
dapt had due notice Of he protest Of The biB u sat-
This will not do to charge the defendant The wit
ness, without disclosing the facts, undertakes to
state mere legal conclusion. namely that me de-
fendant had due notice of tie protest But TINS IS
matter for the Court and not for the witness. de
should have stated the facts with all the attending
circumstances so that the Court and jury might re
enabled to pronounce whether the defendant had
been legally Notified or not
have to rely upon the mere legal opinion OF the wit
ness. that the defendant had due notice. Greenl
Ev Sec. 1856
The Judgment viii be reversed and new trial
Granted. WRIGHT
Test: NJ. D. WEIGH, Clerk.
Wood, Bacon < Co. Incorrect al
The decree of the Chancellor is erroneous. There
is plain distinction betweena conveyance TO secure
the payment Of debt, and one merely for the per-
sonal indemnity Of a surety.
In the former case the trust enures TO the benht
of the creditor, and creates fund in his favor OF
which he may avail himself in order &c obtain sat
sfaetiOn Of his debt And in thatcase the discharge
of the surety though his protection was also one OF
the objects of the CONFERENCE.-THE have no eject
upon the claim of the creditor to the fund
II is true the deed of trust executed by Samuel T.
Smrpans to the defendants, Moore and Harwood,
was intended to secure said Moore and others' 3
the surties and stayors of said Simmons IN certain
debts enumerated in said deed.
But is equally clear that 1t was also intended Us
security for the payment Of the debts themselves.
The deed recites that the sad Simmons had pro-
cured said Moore to become his surety and stayor,
to certain debts which sre specifically set forth IN
said deed and among them, is the debt to complain
ants Of S666,90.
He also mentions other debts which he owed and
in some Of which other persons had become liable
as his surety and stayOr; and then provides, that
in order to secure his said securities, stayors and
other credit9rs-the said Moore and HarwoOd-the
trustees should apply the assets in the deed OF
trust first to the payment Of the debts on which he
had given security, and procured stayors, and the
debts for borrowed money, and certain other debts
therein named and next to the payment OF his other
| creditors.
This language is plain. The cOmplainants have a
right to require Moore and Harwood-the trustees
to pay them their rateable part Of the trust fund
with the other creditors Of tie first class in the
deeds the assets being sufficient to pay all the cred
itors
] The fact that Moore succeCded-atter the eXecu
! ton of the deed-in litigation with cOmplainauts
| in having himself discharged from liability in thelI
debt upon plea of non est factun or other defence
can. IN no way, change destroy their right. Th'
principle settled in Jones VS.. Hamlet, Sneed Zo6
and Kennedy vs. Pitts ct al, Sneed 81, is it seems
| to US. decisive Of this case.
Reverse the decree for compliments.
WRIGHT.