Union Point Ginnery & Warehouse Co. v. Harriman National Bank

83 S.E. 657, 142 Ga. 727, 1914 Ga. LEXIS 524

Opinion

Atkinson, J.

1. The election of a pledgee holding several collateral securities for the principal debt, as to which of the securities shall be resorted to in order to enforce payment of the unpaid debt, is subject to the equitable principle known as marshaling securities; but this rule has no application to debtor and creditor. Colebrooke on Collateral Securities (2d ed.), § 98; Carter v. Neal, 24 Ga. 346 (71 Am. D. 136); 26 Cyc. 936; Boone v. Clark, 129 Ill. 466 (21 N. E. 850, 5 L. R. A. 276 (5), and note on page 280).

2. The trial judge properly dismissed the petition on general demurrer.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.

The defendants made a motion to dismiss the petition, on the grounds that it did not set forth a cause of action and there was no equity in it. "Whereupon the plaintiff offered an amendment alleging the following: The Harriman National Bank claims a balance due, on the debt for which plaintiff’s debt is held as collateral security, of between four and five thousand dollars. The capital stock of plaintiff is only $3,500, and it is unable to raise and tender to the Harriman National Bank the amount which it claims to be due it. The amendment was rejected as immaterial, and upon renewal of the motion to dismiss it was sustained. The plaintiff excepted to these rulings.

Samuel H. Sibley, for plaintiff. Cobb & Erwin and Lewis, Davison & Lewis, for defendants.