
    Parrish et al. vs. Gray.
    A. F. M’Kinney, tlio security of Poison in a bond executed to Gray, gave Gray a notice in the following words: “I wish you to collect the debt oil' of Poison wheroiulam security. 1 st February, 1838. A. F.M’Kinney.’’ field that this was not such a requisition “forthwith to ¿nit Ike bond in suit,’'as would discharge M’Kinney in the event that Gray did not'put the bond in suit.
    William Gray instituted an action of debt in the circuit court of Williamson county on the I9th day of April, 1838, against Joseph D. Poison, Charles D. Parrish, Alexander F. M’Kinney and Benjamin F. Tappan, upon a bill single. Poison was the principal and the others were his securities. Poison pleaded “payment and set off,” and a verdict and judgment were rendered against him, from which there was no appeal. The other defendants pleaded separate pleas, each resulting in an' issue upon the question whether the defendants had given the plaintiff such notice to institute suit upon the bond as is required by the act of 1801 to discharge him therefrom. At the March term, 1839, these issues were submitted to a jury. The plaintiff introduced and read to the jury an obligation for four hundred and fifty dollars, executed by Joseph D. Poison, Charles D. Parrish, Alexander F. M’Kinney and Beniamin S. Tappan, due the 25th of January, 1839.
    The defendants proved that on the 1st day of February, 1838, A. F. M’Kinney sent a notice to the plaintiff in the following words:
    “Mr. Wm. Gray: I wish you to’collect the debt off of Poison wherein I am security.
    “1st February, 1838. A. F. M’Kinney.”
    No person Isnew of the delivery of this notice but the wit ness who carried it. He told plaintiff he had better‘go and see Poison as Poison had just won five hundred dollars on a horse race, to which plaintiff replied that it was hardly worth while to see Poison on the subject. Poison was insolvent-Defendants further proved that plaintiff told the witness in October, 1838, that M’Kinney had given him notice to collect the debt or bring suit on the obligation; witness could not recollect the words used; and that he, plaintiff, went to town for the purpose of instituting suit in due time, but that he was prevented from so doing by an agreement on the part of Tappan to pay the money or confess judgment on the obligation at March term, 1838, if plaintiff would not sue on it. Defendants proved by another witness that plaintiff stated that M’Kinney had given him notice to bring suit on the obligation now in suit. This was just before March term, 1838. At the March term, 1838, Tappan declined paying the money or confessing judgment, inconsequence of a determination on the part of his securities to resist judgments over against them, and in consequence of a discovery of the notice given by M’Kinney. The court charged the jury that the notice necessary to discharge a security from his obligation to pay the debts of his principal must be such as the statute requires; that if the words used in the notice be ambiguous, they are to be taken most strongly against the party giving the notice; and if M’Kinney intended, by the notice' given in this case, to instruct the plaintiff to make a private application to Poison for the money he had won at the horse race, it would not be such a notice as the statute required.
    The jury found a verdict against all the defendants for four hundred and fifty dollars debt, and thirty-two dollars damages. A motion for a new trial was made and. overruled, and judgment rendered in accordance with the verdict; from which there was an appeal in the nature of a writ of error to the supreme court.
    
      Alexander, Campbell ancl Marshall, for plaintiffs in error.
    
      1$. C. Foster, for defendant,
   Green, J.

delivered the opinion of the court.

This action is founded upon a bill single, executed by Joseph D. Poison, C. D. Parrish, Alexander F. M’Kinney and B. S. Tappan to the plaintiff, for four hundred and fifty dollars. Parrish, M’Kinney and Tappan were the securities of their co-defendant, Poison, and the only question in the case is, whether the plaintiff received notice to sue from the securities, or either of them, and neglected for more than thirty days thereafter to bring suit, whereby they are discharged the provisions of the act of 1801, ch. 18, sec. 1, (C. and 657,) The notice which was sent to the plaintiff by M’Kinney, one of the securities, is as follows: ‘«Mr. Wm. Gray: I wish you to collect the debt off pf Poison wherein I am security. 1st February, 1838. A. F. M’Kinney.” The court fold the jury that this was not such a notice as the statute requires.

We think the opinion of the circuit judge cprrect. The statute says it shall be lawful for any security to any bond, &c. to require, by notice in writing, of the creditor forthwith to put the bond, &c. in suit, and unless “the creditor so. required to put such bond, &c.” in suit, shall within thirty days thereafter commence an action on such bond, &c. he shall forfeit the right to demand of the security the amount due by such bond, &c.”

The notice before us in this case does not require the creditor to put the bond in suit, but simply expresses a wish that he would “collect” the debt. That the request to collect is not a requisition to sue is evident; and a party who seeks to be released from his written voluntary obligation to pay money by the mere force of the statute in his favor, must show that he has complied with the statute on his part. This is not done in this case, and we therefore affirm the judgment.  