Fowler v. Brooks
Superior Court of New Hampshire
Assumpsit on a promissory note, dated April 20, 1836, for $300, payable to Thomas H. Kimball, or order, by the first of January, then next, and indorsed by Kimball to the plaintiff. Plea, the general issue. The note in suit was signed by Benjamin Fay and the defendant. Fay was defaulted. It was admitted that Kim-ball, the payee of the note, was the party in interest in maintaining this suit.
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Assumpsit on a promissory note, dated April 20, 1836, for $300, payable to Thomas H. Kimball, or order, by the first of January, then next, and indorsed by Kimball to the plaintiff. Plea, the general issue. The note in suit was signed by Benjamin Fay and the defendant. Fay was defaulted. It was admitted that Kim-ball, the payee of the note, was the party in interest in maintaining this suit. The defence set up was that Fay was the principal upon the note, and that the defendant was surety merely; that this was known to Kimball, and that after the note fell due a new agreement was made betwixt…
1Opinion of the CourtParker, C. J.
The defendant Brooks being only a surety, was discharged by an agreement to delay, made between the creditor and the principal, without his assent at the time. This appears from the verdict. Or, in other words, he might avail himself of this fact as a discharge of himself, if he saw fit so to do. But if, with a knowledge of the fact, he had deemed it expedient to waive this right, a new promise to pay would have continued his liability, without any new consideration. The right of discharge, in such case, from the mere fact of the extension of time, is a personal privilege of the surety, which…
2Cases cited2 opinions
- Wheat v. KendallSuperior Court of New Hampshire · 1834
- Bailey v. AdamsSuperior Court of New Hampshire · 1839