Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-11
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph ID. Heiskeli, AttorneysGen-
eral and Reporter.
No. %.
8. A. Hopkins va. 8. B. Spurlock.


8. A Hopkins va. 8. B. Spurlock.
OPINION.
The bill in this case was filed to enjoin
a suit at law in which defendant was
seeking to collect from complainant q
note OF $3.50, made by one Cummings
and to which complainant was security.
1t is alleged that Cummings was indebted
to complainant for two notes-one for
1920 and the other for 5000, on both of
which complainant was security; that
complainant who lived at McMinnville,
finding out Cummings was about remoV-
ing to Missouri, with his property, pro-
cured letter to be written to defendant
then in Nashville, notifying him that
Cummings would pass through Nashville
at a specified time with his property, and
that he must make the money out of
Cummings, and that he need not look to
complainant to pay the debts of Cum
mings. 1t is further alleged, that de-
PENDANT had admitted that he collected
from Cummings $500, as he passed
through Nashville, which he had appro-
pristed in payment of other debts due
defendant from Cummings, and that
Cummings had means to pay. Upon
these allegations complainant insists, that
he is discharged from the payment of the
note for $3.50 sued on.
Defendant admits, in his answer, that
he held the two notes of $3.50 and of
5000 on Cummings, with complainant as
security, as alleged, as well as others ON
which complainant was liable, and that
Cummings had paid the 5000 note and all
the others except the one for $3.50. He
admits he received aletter from complain
ant, requesting hun especially, to secure
the debt of 5000 on which complainant
alone was security, but he does not admit
that the $3.50 note was referred to. He
answers, that after using strict vigilance
and diligence he succeeded in collecting
$500 from Cummings, which he apprc-
priated to several notes due defendant, on
each of which complainant was liable,
and amongst them was the $500 note
specified in the letter-and that he was
unable to collect from Cummings the $3.50
note, after employing all necessary dill
gence and exhausting all remedies at law
or otherwise.
The only testimony in the case is found
in the deposition of A. w. Hopkins, who
states that she wrote letter to defendant
at the request of complainant, in which
he notified him that Cummings would pass
through Nashville, and that he must make
his money out of him on the notes on
which complainant was security, as Cum
mings had means to pay it and it could
be made of him.
There is no other proof, the letter re-
ferred to not being in the record.
1t is well settled that if a surety to a
note notifies the the holder to sue the
principal, when by so doing the money
could be made, his failure to sue may be
insisted on by the surety as discharge of
his liability. 10 Yerg, 1862. But, to
make the discharge effective, it must rot
only appear that the holder of the note
failed to sue, but that the money could
have been made by proper diligence. In
this case, the notice to make the money
is shown, and it is also shown that $500
was collected; but the allegation is that it
was appropriated to other debts. The
answer is responsive, that all the money
was appropriated to debts on which COM
plainant was liable, including the 5000
note on which complainant alone was Sc
curity, and which was specified in the
letter as the debt to be specially paid.
There is nothing either in the answer or
in the letter, or remembered by the writer
of it, which shows that there was any
special direction as to paying the $3.50
note. 1t is alleged that Cummings had means
to pay all the debts on which complainant
was liable. The defendant answers the
allegation, by saying, that he was unable
to collect the $40 note after exhausting
all remedies by law or otherwise. There
is no proof contradicting this statement.
We do not think the facts bring the
case within the rule of law before stated
stated, as to the discharge of surety.
The decree of the Chancellor will there
fore be affirmed with costs.
NICHOLSON.
A true copy:
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