Low v. Smart
Superior Court of New Hampshire
Assumpsit on a note for ⅜380, dated June 2G, 1826, payable to Peter Smart, or order, and by him endorsed to the plaintiff. The cause was tried upon the general issue, at September term, 1830, when it was’ admitted that the note was made and endorsed, and that the same was transferred to Peter Elkins, whose property it remained.
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Assumpsit on a note for ⅜380, dated June 2G, 1826, payable to Peter Smart, or order, and by him endorsed to the plaintiff. The cause was tried upon the general issue, at September term, 1830, when it was’ admitted that the note was made and endorsed, and that the same was transferred to Peter Elkins, whose property it remained. There were several sums endorsed upon the note, the last of which was under the date of August 16, 1826. The defendant called the payee, who testified, that after the 20th August, 1826, he received of the maker the whole amount due on the note, and that afterwards he…
1Opinion of the Court
By the court.
The law seems to be perfectly settled, that one surety is entitled to the benefit of any security which another,'who is his co-surety, has. 1 Johns. S. C. Rep. 409; 10 ditto, 524 ; 11 ditto, 22—23 ; 10 ditto, 409 ; 4 ditto, C. Rep. 123 ; 4 N. H. Rep. 488 ; 4 Vesey, 824 ; 1 Johns. Cases, 137 ; 17 Johns. 384 ; 7 ditto, 336 ; 8 Pick. 122 ; 5 ditto, 307 ; 17 Mass. Rep. 464 ; 2 Binney, 382.
This being the case, it is clear that Emery had an interest in the event of the suit inclining him in favor of the plaintiff, who called him. He was, therefore, improperly admitted to testify for…
2Cases cited2 opinions
- King v. BaldwinCourt for the Trial of Impeachments and Correction of Errors · 1819
- Grafton Bank v. HuntSuperior Court of New Hampshire · 1828
3Cited by1 opinion
- Currier v. FellowsSuperior Court of New Hampshire · 1853