Hughes v. Gordon
| Decision Date | 30 April 1842 |
| Citation | 7 Mo. 297 |
| Parties | HUGHES v. GORDON. |
| Court | Missouri Supreme Court |
APPEAL FROM THE CLINTON CIRCUIT COURT.
WOOD, for Appellant.
BURNETT & JONES, for Appellee.
From the bill of exceptions in this case, it appears that the appellant, Hughes, and one Blickley, were joint obligors in two notes for twenty dollars each, to the appellee, Gordon, and that Hughes, as security, gave notice in writing to Gordon, to commence an action against the principal. Suit was accordingly instituted within less than thirty days after the notice against Hughes and Blickley; but Hughes alone was served with process and judgment given against Hughes alone. Blickley, it appeared, resided at the time of the notice, in Platte county, and Hughes in Clinton county, in which last county the plaintiff, Gordon, also resided. Our statute requires the obligee to sue the principal and securities, when notice in writing is given by any one of the securities. In this case, however, as the principal and security lived in different counties, and the amount of the notes was within the jurisdiction of a justice of the peace, it is plain that both Hughes and Blickley could not have been successfully sued. The act for the benefit of Securities, was not, I apprehend, under such circumstances, intended to deprive the obligor of his election, and compel him to go to a distant county and bring a suit against the principal alone. A security can at all times place himself in a condition, to recover against his principal by paying the debt.(a) Judgment affirmed.
TOMPKINS, J. I do not concur.
(a). 6 Mo. R. 46; Sappington v. Jeffries, 15 Mo. R. 628; Bouton's Adm'r v. Lacy, 17 Mo. R. 399; Perry v. Barrett, 18 Mo. R. 147; Cook v. Barrett, 19 Mo. R. 39; Lockridge et al. v. Upton, 24 Mo. R. 184; Christy's Adm'r v. Horne et al., 24 Mo. R. 242; Bank of Missouri v. Matson, 24 Mo. R, 333; Freligh v. Ames et al., 31 Mo. R. 253; Driskell v. Mateer; 31 Mo. R. 325; Cain v. Bates, 35 Mo. R. 427.
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