Peck v. Barney

The opinion of the court was delivered by Collamer, J. —The guaranty executed by the defendant was, as against him, evidence of all the facts therein stated. It showed that the plaintiff, at the date of the guaranty had two notes against Horatio, and also a judgment, on which execution had issued, which was then in the officer’s hands. In an action on the guaranty, these facts required no further proof. But the writing did not tend to show that the notes or execution remained unpaid at the commencement of this action. Had not the plaintiff pro'ducfed the notes, it would have been presumed they had been paid by the signer, Horatio. To rebut such a presumption the notes were produced. The same rule applies to the execution which had been issued. It will be presumed to have been paid by the debtor unless the execution be produced orits loss shown, or the presumption of payment be otherwise rebutted. This rule of law was not regarded in the judgment which was rendered and therefore it was erroneous. This decision renders it unnecessary now to consider how far the plaintiff must show the defendant had notice that the guaranty was accepted, or notice afterwards that Horatio had not paid, or that security had been required of defendant agreeably to the guaranty. Judgment reversed.