Nichols v. Parsons

Richardson, C. J., delivered the opinion of the court. When two or more persons give a note for their joint debt, they may be considered, in some respects, as sureties for one another. 5 N. H. Rep. 38, Handerson v. McDuffie. But the principle, that a surety is discharged, by giving day of payment to the principal, without the assent of the surety, has never been applied in such a .case. The holder of a note has a right to consider, and to treat, all the makers as principals, unless he has notice that there are sureties. Cut it is said, that, as the note in this case was transferred to Ingals, after it was discredited, he is, by law, .presumed to have known every thing, in relation to it, which was known to Nichols. We do not understand the law to be so. It is true, that he, who takes a discredited note, receives it, subject to any defence which might be made to it, in the hands of any previous holder. Rut that principie is not applicable to this case. When ingals received the note, ii was justly clue. The defence is, not that the defendant then had any answer ,'o ms wuon on We note, but that Ingals has since, by giving day of payment to the principal, discharged the deferula nt._ He, who takes a discredited noM, is presumed to be acquainted with everv defence <o vh'wh It is subject, be [33] cause no prudent mau ever receives such a note, without making enquiry, and learning the reason, why it has not been paid. But whether some of those, whose names are upon a note, are sureties, is a matter wholly immaterial to the person who purchases the note ; and he cannot be presumed to have enquired, or to have learnt, in what character they signed, because that was .a circumstance with, which lie had no concern. If sureties wish to have the character, in which they,put their names to notes, known, they must sign as sureties. If they neglect to do this, no person is bound, under such circumstances, to en-quire, nor can be presumed to know, in what character they sign notes. The circumstance, that the suit is in the name of Nichols, does not alter in the least degree, the merits of the defence, which the defendant attempts to interpose. It' it had been shown that logáis, when he gave day of payment, had notice that the defendant was a surety, the defendant must have been discharged ; but that not appearing, the plainiiff ls entitled to Judgment on the verdict,