Warner v. Price

By the Court, Savage, Ch. J. The first question is, whether the plaintiff was surety for all the defendants who preceded him as makers of the note, or for Price only? What passed between Price and the plaintiff when he subscribed his name does not appear; but what was said to Matthew Warner was sufficient to apprize him that Price alone was to be benefitted by the money, and when he was asked to become surety, he could not suppose that those who had preceded him stood in any other character than sureties. The note, when presented to the plaintiff, was perfect, and he might have advanced the money upon it, and it would have been a good security in his hands; but when the fact appears that he signed as surety, and that all the others except Price signed the note as sureties also, they must all be considered co-sureties unless a state of facts be shewn to the court from which it shall appear positively, or by legal intendment, that these defendants intended, as to the subsequent signer, to stand in the character of principals. No inference of that kind can be drawn from the facts in this case, unless it be from the declarations of Case, who admitted that he and' the other defendants were liable to the plaintiff; but whether this admission was founded on the fact of their being all principals, or on a mistaken notion of the rights and liabilities of the parties, does not appear. It may have been either. But if he intended to admit that they were all principals, his admission is not evidence to charge the other defendants. An admission of indebtedness, by one of several joint debters, is sufficient to take a case out of the statute of limitations; but an admission of one partner, after dissolution of the part [400] nership, cannot effect the other partner to make him chargeable by reason of such admission, with the above exception. It is not pretended that these defendants were partners ; the contrary is proved. I am of opinion, therefore, that the action cannot be maintained. If it could, there is evidence of the payment of the money to the sheriff. But the receipt of the plaintiff’s attorney was inadmissible ; the attorney himself might have been produced. I am of opinion that the .defendants are entitled to judgment.