12 Ga. 271 | Ga. | 1852
By the Court.
delivering the opinion.
A witness, however, was called in this case, who swore that the brief contained the evidence, as McDowell gave it. So it was properly read as evidence.
If Brown, the complainant, was only security on the second note, and the indulgence as charged is proven, he is entitled to recover. He avers that he was not interested in the consideration of the first note, in lieu of which the second was given, and seeks to show thereby, that he was only security to this second note. But he is not held, because of that averment, to prove his suretyship in no other way. If he was surety only to the second note, his case is, pro tanto, made out, no matter how he proves it. So the Court was right in refusing to charge, that unless that allegation was proven, he could not recover.
The Court allowed interest to the complainant from the time that defendant or his counsel received it. The payment and the entries on the execution-, liquidated the claim, and it bore interest rightfully from that time.
The Court was correct when he told the Jury that Riggins did not positively deny the suretyship of the complainant on the note; for such we find to be the fact. He denies that the note or the judgment exhibits him as surety; but does not positively say, that he was not in fact a surety on the contract. Besides, the Judge left, after all, the consideration of the fact of the denial of the suretyship to the Jury, upon the answer and the evidence.' Nor did the Court err in declining to instruct the Jury, that if Brown assented to the indulgence, he was not discharged. The defendant, Riggins, denies that any indulgence was given, and, there is no evidence of Brown’s consent. There was therefore no issue or evidence which called for any such instruction. In laying down the law, as to what would discharge a surety, moreover, the Judge expounded the rule to them fully and clearly.
Let the judgment be affirmed.