Bank of Missouri v. Matson

• Citation: 24 Mo. 333
• Parties: BANK OF MISSOURI, Respondent, v. MATSON, Appellant.
• Decision Date: 31 January 1857
• Court: United States State Supreme Court of Missouri

24 Mo. 333

BANK OF MISSOURI, Respondent,

v.MATSON, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. The voluntary dismissal of an attachment suit, commenced by an indorsee of a promissory note at the request of a surety on said note against the principal, in which suit an amount of property more than sufficient to satisfy the debt was attached, will discharge the surety.

Appeal from Livingston Circuit Court.

Clark, for appellant.

I. The facts set up in the appellant's answer were well pleaded, and, if true, formed a good defense to the plaintiff's action. No principle is better settled than that after a creditor has by agreement with the debtor, or by any legal process, got possession or control of sufficient property or means to satisfy his debt, and chooses not to retain them, but suffers them to pass into the hands of the principal debtor, the security is thereby released and can never be afterwards called on. (Ferguson v. Turner, 7 Mo. 498; Rice v. Morton, 19 Mo. 263.)

Gardenhire, for respondent.

I. This case is not within the principle of Ferguson v. Turner, 7 Mo. 497, or of Rice v. Morton, 19 Mo. 263. In both these cases the creditors had judgment and execution, an existing lien, and, by active interference, destroyed it. That is not this case. Commencing an action with an attachment and dismissing it is no discharge. It may have been improperly brought, and dismissed for that reason, and for the purpose of bringing a proper action. The answer shows no fraud or agreement with the principal. A new action might have been immediately recommended. In the case of the Bank of Montpelier v. Discar, 4 Verm. 587, it was expressly decided that a voluntary discontinuance of an attachment did not discharge the surety, and the same doctrine was reaffirmed in Baker v. Marshall, 16 Verm. 522, in a stronger case. In the absence of fraud and an agreement with the principal debtor, the creditor may be inactive if he chooses. He is not bound to commence an action, and having commenced it, he may dismiss it when he pleases. The same doctrine is recognized in Creath v. Sims, 5 How. U. S. 192. The answer does not show that the creditor received any consideration for dismissing the attachment or put any limitation upon his right to proceed in a fresh action, if he chose. It was nothing more then, in principle, than an action on the part of the creditor, which, it is well settled, does not discharge the surety.

RYLAND, Judge, delivered the opinion of the court.

The Bank of the State of Missouri, at Lexington, commenced suit in the Livingston Circuit Court, at the November term, 1856, against the defendant, upon a negotiable note indorsed to the Bank. The appellant appeared and filed to said action the following answer: “The defendant, for his amended answer to the plaintiff's petition in this cause, admits that he and one William Lennox executed the note sued on in manner and form as charged in the petition, but avers that he executed the same as security of the said Lennox, and that at the time said note was indorsed and received by the plaintiff, it was well known to plaintiff that this defendant was only a security on said note for said Lennox. Defendant further alleges that he never received from plaintiff any notice of the dishonor and protest of said note. Defendant further states that after said note became due, defendant having learned through rumor that the note in controversy had not been paid at maturity by the said Lennox, as principal in said note, defendant dispatched an agent to plaintiff with instructions to inform the plaintiff that said Lennox, as principal in said note, had then in Livingston county,...