Franks v. Hamilton , 29 Ga. 139 ( 1859 )

— Benning J.

By the Court.

delivering the opinion.

Ought the Court to have granted the motion for a nonsuit ?. We think so.

We think, that the proof failed to show a breach of the condition of the bond. The condition was, that the bond was to be void, if the obligors paid the note, “ so, that, in no event, it” should “ be collected, or attempted to be collected, from” the endorser, Hamilton. A collection of the note from Hamilton, or an attempt at its collection from him, was therefore, essential to a breach of the condition. Does the evidence show either ? It does not. It merely shows, that the note was put into the hands of attorneys for collection. It does not show, that the attorneys had collected it from Hamilton, or had attempted to do so. It rather shows the contrary; for it shows, that, when the note was put in the hands of the attorneys for collection, Hamilton was out of the State, a resident of Mississippi.

Judgment reversed.