King v. The Cent. Bank

• Decision Date: 28 February 1849
• Docket Number: No. 36.,36.
• Citation: 6 Ga. 257
• Parties: A. M. D. King, plaintiff in error. vs. The Central Bank, defendant.
• Court: Georgia Supreme Court

6 Ga. 257

A. M. D. King, plaintiff in error. vs. The Central Bank, defendant.

No. 36.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1849.

Motion to have fi. fa. entered satisfied, in Monroe Superior Court. Decided by Judge Floyd, September Term, 1848.

The Central Bank obtained a judgment against A. M. D. King, as indorser, upon which a fi. fa. was issued.

At the September Term, 1848, of the Superior Court of Monroe county, the defendant, King, moved to have the fi. fa. against him entered satisfied and returned to office, upon the ground that the same was obtained against him as an indorser, upon a note made prior to the Act of Congress, known as the Bankrupt Law; and that after the judgment was obtained, from which said execution issued, one of the makers of the note had received his certificate of bankruptcy, and was discharged from all libility on said note, after due notice of the application given to plaintiff.

After argument heard, the Court refused the motion.

To which A. M. D. King excepted, and alleges the same as error.

A. M. D. King and S. T. Bailey, for plaintiff in error.

Powers & Whittle, for defendant.

By the Court.—Nisbet, J., delivering the opinion.

If I understand distinctly, the view taken of this case by the plaintiff in error, it is this: He being indorser upon a promissory note, made prior to the passage of the Bankrupt Law of the United (States, and his principal being discharged by a certificate under that law, that discharge also discharges him. lie holds that the law of Congress has not only discharged the principal, as to all liability to his creditor, but as to all liability over to him, the indorser, and therefore, by operation of law, he, as indorser, is also discharged of all liability to the creditor, lie starts, must needs start, with the assumption, that the Bankrupt Law is valid, so far as it has taken effect upon his principal, for if it be not valid in its operation upon his principal, then his principal's liability over to him continues. He is not injured—his contract of suretyship continues unimpaired, and the reason for his release to the creditor ceases. The Bankrupt Law, whilst it provides for the discharge of the principal, expressly provides that the discharge of the principal shall not operate as a discharge of the indorser. This being so, it becomes indispensable to the conclusion at which the plaintiff in error arrives, and to which he would conduct us, to assert the invalidity of the Bankrupt Law, so far as it retains his liability as indorser, after it has discharged his principal. He therefore takes that ground, and his position is, that inasmuch as the note was made before the passage of the Bankrupt Law, his rights, as indorser, vested under his contract of suretyship, made with reference to the laws governing such contracts, at the time it was entered into—that the effect of the Bankrupt Law, in discharging his principal, and expressly holding him liable, divests those rights; and therefore, the Bankrupt Law, so far as it retains his liability, is a nullity.

Thus are we invited to the decision of questions as grave as any ever presented to an American Bench. If we were willing to meet them now, we would-find presented in this case, for determination— 1st. Whether a...