McCrary v. King

27 Ga. 26

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

The judgment sustaining the certiorari, was clearly right, if McKendrce, the person, to whom the notice to sue, was given, was the person to whom that notice ought to have beeu given.

McKendree held the note, as a collateral security. He was instructed by the owner of tho note, to apply the proceeds of if, when collected, to the payment of a demand held by himself, against the owner. This gave him the right to hold on to the note, as a security for this demand.

This being so, he was the legal as well as the “actual holder” of the note; he and he only, was the person who had the right to bring suit upon it. He therefore was the person proper to be notified by a surety to the note, to sue the maker of it, under the Act of 1831, (Pr. Big. 471,) for that Act says, that “ where the security” to a note shall “require the holder thereof, to proceed to collect the same,” and the holder does not proceed to do so, within three months, the “security shall be no longer liable.”

In Carhart, Bro. & Co. vs. Wynn, (22 Ga. 24,) the holder had no legal title to the note, asa collateral security; a thing which distinguishes that case from this.

Judgment affirmed.

Judge MoDomjii.d, on account of illness, did not preside in this ease.