Simpson v. State

65 Tenn. 440

Opinion

Deaderick, J.,

delivered the opinion of the Court.

Upon the ground of notice to sue, a surety can only be discharged in a law court by giving the notice prescribed in sec. 1968, and proving it in the very mode required by sec. 1969 of the Code, which is substantially the same as the act of 1801, ch. 18.

In 2 Hum., 320, the court say: “By this act nothing is left to judicial construction. The notice must be in writing and proved by two witnesses, and the statute strictly complied with.”

In equity the rule is different, and the distinction has been clearly recognized and followed in our decisions. The cases cited in 10 Yer. are causes in equity, and no case can be found different from the case in 2 Hum., where the suit is brought at law and discharge sought on the ground of notice.