Vivian v. Lafayette County

13 Mo. 453

Opinion

"BIRCH, J.

This was a petition in debt against Vivian on the bond of B. F. Yantis as principal, and John B.Vivian and James Aull, as securities, •made on the 7th day of February, 1840, and payable to Lafayette County with ■interest. It appeared upon the trial, that about the date of the bond, Yantis borrowed of the county four hundred dollars of the school fund, and, with the other obligors as his securities, executed the note sued on. No mortgage security was given, as required by law, for reasons not necessary here to be .stated. On the second day of November, 1847, Robert Aull, who was the ■administrator upon the estate of James Aull, caused a written notice addressed to W. H. Russell, who was the treasurer of the county, to he delivered to the •County Court, then in session, to the effect “that the estate of James Aull would no longer be held responsible as security on said note.”

Upon this state of facts, the court below declared the law to be, that neither the omission to take mortgage security of the borrower, nor the omission to sue within thirty days after the receipt of Aull’s notice discharged Vivian (the •other security), and judgment was given against him accordingly.

We have considered it unnecessary to look into the numerous authorities which are referred to in support of the rulings of the judge below, inasmuch as the third and last point which has been made by the counsel for the county is deemed to be properly predicated upon numerous recent adjudications of this court in analogous cases. The judgment of the ■Circuit Court is therefore affirmed.