Allison v. Waldham

Catón, C. J. We agree with the Circuit Court, that if the plaintiff could not have recovered anything of the maker of the note, he was not bound under this guaranty to sue him. But the evidence shows that the maker of the note had from one thousand to fifteen hundred dollars’ worth of property in his possession, openly in the county, for several months after the note became due. And if two constables, whose testimony does not say much for their vigilance or capacity for the office, did not know how to get hold, of it, that form's no excuse for the inaction of the plaintiff. The idea that a man is insolvent, and nothing can be made of him, because he locks his property up in a barn, can hardly receive judicial sanction. The evidence shows that the plaintiff should have sued the maker of the note, and tried, at least, to have collected the debt, before resorting to this special guarantor. The judgment must be reversed, and the cause remanded. Judgment reversed.