Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-11-11

v,v,s ,otpwrII. ATTORNEY orNHRAI AM
1ouNsoN AND TAYLOR 90. IyBf.
"a. 5;.cIosod BY the record IN i 5ea one
nc 80 on the goth Of sePteIIDt loaned TO
A Uofand tho daughter Of tuo Joiisrs IN gold, in
D. n, ~ T,b,s,n seven hundred "a eom-
Iue W H. JonHs, - johnson. principal, ana ool
'Gn,' :. s5rcties executed no's Pa'I Leoring
iIF 4 Holland, due one day ~" - .1,nsn after
sara =, - ne rste Of ten per cent Per auhuu g
tntefes' AZ =, 4sv Of January, 1901, the salu r. -
IISS Endorsed and delivered sala hoe - 'Io h.s
49, Abo1t this time johnson, tne Pt tl,i ~
$500 snd has secn ever since; tuOsoq. a..
,t,s bsss,oc uneasy Ia consequence OF heI ia
Sjt and urged johnson 70 pay the money 49, - ~
80 Tbereupon johnson procured me money - 80. r.
mem -, gsTret with whom be was in PartneIshiP ~
son n'I"", l a.Linp whisky, and the l4th day 2,
I 1884 vent 70 the house Of the defendant an
t5eTed 70 him the fall amount Of the note u
principal and interest IN legal tenas' cdant
81. J-5ited States which refused - the . 80
lo ,r,u the ground the money rendered Wa ~, 49, -
ans liver johnson told him 81 the same '.u' -, tbe
Iaain failing circumstances and Wantsa " Pag,ies
-'Hsss 49,, li5 not take the money he might oou
So the suretes released Ivey said be "oal 1888
money on the note but gold and SILVER s.Il be-
about the frst Of August 1865 me con e5 10 Gar
ing uneasy and anxious 70 be released sono AZ
7eft tbe son law Of w II. Johnson 10 I ,i and
-angenen 10 pay said rote, Eho agtso' sev and pay
W IL Johusou, that be would get ino T.ylor 10 tell
the debt and thereupou told compt = ID, bcuss
Tho ysrties who had the note 20 bring u " :, - "a
and be would pay il al Of Il they 800 IS rped on n
not be oald pay the interest "n'S .erIv Mrs T. A.
and soon therea fer Mrs. Binckey, a 81, ,bo
Ulla1J A. whom the note made paysO,eS'r ' -,
noo 10 Garrett when be tendeigu .iai and interest
due upon the note, including ooLD Pf 80 In 1ur
IN legal tender United stHies Ireasu ,b sj1
ea = 49,. .,.,ecuepi between himself tns eomPiai
ants and " IL Johus1n. He ioia hSi Ia II' ~
pripcipal debtor bad nothing ana MAJ 10 t.
The money In order release in5 YIN ma "a -.
lI.It-tyyr, M Binkley, who then claimed the note
{ as her own but phO vas most pioO4yiy sets 'n
cent Of her father refused 70 receive any hiu VI hoJ
ept gold and silver in payment Of any part o. tne
oN'l' ~ = - FIR ,ut consented 20 receive payment
,bi,b had accrued in the kind Of money
t.ndered and thsreuPon Garrett pHio hef S@oo WHICH
. was placed a. q credit on the note.
wa. .r,I months thereafter Mrs. Binkley again
O nt.d the note 70 Garrett for the payment Of more
it,,cst Eber he again offered 20 pay her The whole
t 5yc on the note 10 United States Urea sury notes.
which s again refused upon the ground that the money
,lcrsd was not gold and silver. And thus matters
stood until about the 10th Of Septembor 1866 when the
Attendant nstitused suit In the Circuit Court Of Robert
con county upon said note against the principal and
w m johnson s insolyent, and if the complainants
are held liable account Of said suryshp they Will he
Il compelled 10 pay said note.
Rlsd tb. bill seeking enjon said action at law, and
10 be discharged from their liability. The Chancellor
refused the relief and deoreed against tho compliments
and the surety 10 the injunction bond, from Whch they
/ awe appealed to this court
This relief ia sought upon two grounds lst 1t is al
eyed that compliments notified the defendant about inc
they would not longer be liable account Of their sure
yshp and that in consequences Of his failure to do So
thcy are released This allegation in the bill is denied
IN the answer and there proof whatever TO sustain
IT, Consequently the cOmpainants are not entitled 70
relief upon this ground; II the facts alleged would
sne them 10 the relief sought 3D. The relief IS sought
upon the ground that tho creditor refused to receive the
money rendered him in payment OF the note IhN, s
Insisted and think correctly discharged the saTeties
A contract by which person becomes responsible
for the debt Of another IL in ts general nature eoate
Hlaaw HHNrr F.FaaH he'd POM a
original and direct agreement for the partys own act
, and Is in the nature Of accessory 70 principal 0b-
CATION. Chty on con. 1919, 5Zs.
The contract for aureyshp imparts entire good faith
na confidence between the parties in regard to the whole
transaction ANY conceament of material taot or any
express or implied MISREPRESENTATION Of such facts, or
any undue advantage taken Of the surety by the credl
tor either by surprise by Withholding proper infor
nation will undoubtedly furnish sufficient ground 20
uvtdate tho contract apon the same ground the credt
m in all subsequent transactions with the debtor,
bound 10 equal good faith the surety If he does any
at injurious 30 the surety, nconsistent with his
rghts The surety in all such will bo discharged,
and the creditor has any security from the debtor, and
he parts with t without communication with the surety,
by his gross negligence ia lost that will operate to
discharge the surety at least to the value of the secur-
~ and il makes difference whether the security eK
scd tbe date Of yuretyship not See Redfeds Ed
Of soys Eq. Jurvol l. sections 32l, 325 and 326, and
authorities cited also, Bond ct al VS.. Ray ct at,
Hum 1872.
In the absence Of any express adjudication within our
knowledge upon the precise question presented must
he determined by general principles Of equity.
We have seem that the contract CT surety is in the
ture Of collateral engagement for unothe and imports
entire good faith btwoen the parties IN regard 10 the
whole transaction That any fraud imposition upon
the surety by the creditor will invaidate the contract
That the creditor is bound to equal good faith TO the
surety 10 all subsequent transactions with the debtor,
and IL be docs any act injurious the surety
siscn with his rights, the surety will be discharged.
The contract of tho complainant in this IN
is very nature undertaking upon their part to pay
Tho IN he j
do So They had power 10 compel the creditor
receive the money rendered by johnson. But when it
rendered IN payment Of the debt the creditor was
bound in good faith and in discharge Of his duties the
surees to have received it, and his refusal to accept
compliance with tes oa-sras. thO OF the prin-
cipa, for the performance OF which only the sures
bound. such fraud upon the rights the su-
retes will in equity discharge them from their oblga-
tons, and we think this would be upon principle,
whether the principal debtor was solvent insovent
but especially is il where no nsolvent, and
that fact known to The creditor At the time.
We cannot imagine how it can in any ease DO made
clearly appear than docs in this case that the
conduct creditor has been injurious to tho urctes
II they be held stl liable upon the contract. Had he
accepted the money rendered they would have been dis
charged from all liability. Whilst by his refusal tho
contract be sl binding upon the surecs, they will be
compelled 10 discharge the debt of insOlyen prnc
pal This il to u.s. under the circumstances Of
the case, would be most uequitsble
We have repeatedly holden that the act Of Congress
declaring United States Treasury legal onder 10
the payment Of debts valid and binding.
The correctness Of these decisions has not been ques
toned argument but il Is insisted that inasmuch
the question had not been judicaily determined this
State prior to the 18th Of January 1894 the date Of the
tender Ia this ease therefore offer TO pay in these
notes did not constitute valid tender This proposition
certainly cannot be maintained 70 hold would be in
effect transfer the law making power from the Legis
lavc TO the Judicial Department Of the Government
To hold the acts Of the Legislature, State or national
imperative until sanctioned promulg gated by the
courts Of the country would in opinion, be
strous, .
1t follows, from the view have taken Of the case,
the decree Of the Chancellor is and must be 70
vorsed, ard decree entered for the complainauts.
HAWKINS, Judge.
Attest: J. q. FRAZER, Clerk