McCabe v. Sutton

75 Tenn. 248

• Court: Tennessee Supreme Court
• Decided: April 15, 1881
• Status: Published

Opinion

Freeman,”. J.,

delivered the opinion of the court.

In this case, McCabe and wife and Robertson and wife commenced suit in the chancery court of Madison county, to enforce a resulting trust in certain real estate in the city of Jackson. The right sought to be asserted was in the wives of complainants. Mrs. McCabe has died, and McCabe has married a defendant, so that his interest is now on the other side of the case.

The suit has been revived against him as husband of the defendant, and he has dismissed the suit as complainant, having no further interest. The surety on bond for prosecution presents an application to be released from liability on the same.

The undertaking is simply the usual prosecution bond, and is. as held by this court in Kelly v. Gordon, 3 Head, 683, a joint and several undertaking for both principals, that is, the surety is bound, in effect, that each and all of his principals shall pros: cute the suit with effect. This being so, the voluntary dismissal of the suit on the part of one, cannot release the undertaking as to the other. It may be the liability was incurred at the instance of McCabe, but we cannot look at that question. The liability on the undertaking is alone to be determined by th'e face of the bond. We do not think the surety released by the facts that have been stated. He must be left to indemnify himself in such manner as he may be advised.