Miller v. Childress
| Decision Date | 30 April 1841 |
| Citation | 21 Tenn. 320 |
| Parties | P. M. MILLER v. CHILDRESS. |
| Court | Tennessee Supreme Court |
On the 9th day of April, 1840, Edwin H. Childress instituted an action of debt, in the circuit court of Madison county, against Pleasant M. Miller. The plaintiff declared in the usual form on a bill single, executed on the 19th day of January, 1837, by P. M. Miller, together with W. B. Miller, R. H. Byrne, and John G. Chalmers (who were not sued in this action for the sum of $5,000, payable twelve months after the date thereof.
To this declaration the defendant pleaded that he signed the writing obligatory set forth in the plaintiff's declaration as the security of William B. Miller, and in no other capacity whatever; and that afterwards, to-wit, on the ____ day of ______, 183-, after the obligation fell due, R. H. Byrne, one of the co-securities with himself, notified Childress, in writing, more than thirty days before the commencement of this suit, to institute suit forthwith on said writing obligatory, and that, if he failed so to institute suit, said securities would claim the benefit of the act of 1801, ch. 18; that said Childress, though notified as aforesaid, had, without the consent of said Miller, totally failed and refused to institute suit within thirty days after said notification. The plaintiff replied to this plea by denying it, and issue was joined thereupon.
At the August term, 1840, this issue was submitted to a jury, Judge Read presiding. It appeared in evidence that W. B. Miller was the principal in the obligation, and that Byrne, P. M. Miller, and Chambers were securities; that, in the summer of 1839, Childress was called upon by Byrne and requested to sue on the writing. W. B. Miller testified that, after the obligation fell due, and more than thirty days before the institution of this suit, Childress addressed him a letter requiring him to pay the same, in which he stated that he had been notified to institute suit thereupon; that he had lost the letter; that some time after this he saw Childress, and asked him who had notified him to sue, and was informed by Childress that Byrne had requested him to sue.
The jury, under the charge of Read, judge that the notification to sue must be in writing and that there must be two witnesses thereto, returned a verdict in favor of the plaintiff for the sum of $5,000 debt, and $1,140 damages.
The defendant moved the court for a new trial. This motion was overruled, and judgment rendered upon...
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