Griffin v. Thomas

21 Ga. 198

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 41
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

There can be no doubt but that the payment of the note by Hampton, the endorser of it, to Thomas, the plaintiff in the suit, was a bar to the suit considered as a suit at the instance of Thomas ; and a bar in favor of Griffin, the principal, as well as in favor of Hampton, the endorser. Burge on Suretyship, 354.

The question therefore is, whether Hampton, by paying off the note could take the place in the suit of Thomas, the plaintiff, and have rights there that Thomas himself could not have had.

And we think that he could not.

He certainly could not by common- law or by equity. 20 ibid.

Nor could he by any statute. Of the many statutes on the subject, not one gives the endorser such a right. Those statutes are all confined to cases in which the. payment by the surity is made after judgment. Cobb’s Dig. 592 — 598. There is, then, no law by which he could.

We think, therefore, that the Court below erred in not sustaining the motion.

Judgment- Reversed.