Barney v. Clark , 46 N.H. 514 ( 1866 )

Bartlett, J.

A creditor, who has commenced an action against the principal upon a promissory note, may discontinue it without prejudice to his rights against the sureties, although property of the principal may have been attached. Concord Bank v. Rogers, 16 N. H. 9; Baker v. Davis, 22 N. H. 37; Barker v. Marshall, 16 Vt. 522. Consequently, the omission to take judgment upon the note now in suit in the action in the name of Harris could not of itself discharge the surety. It is unnecessary to inquire, whether, in this State, after a judgment against the principal, a mere release of his property attached in the suit would under any circumstances discharge the surety; see Baker v. Davis; City Bank v. Young, 43 N. H. 461; Springer v. Toothaker, 43 Me. 381; Hubbell v. Carpenter, 5 Barb. 526; Fuller v. Loring, 42 Me. 493; Bellows v. Lovell, 5 Pick. 312; for in the suit of Harris no judgment was rendered on this note.

It is claimed that the plaintiff is estopped to assert a claim upon this note against the defendant, but wc do not think that this appears upon the facts stated by the referee. If we were to assume that the plaintiff" stands exactly in the position of Harris, and if the latter, knowing Clark to be a surety, had told him that the note was secured by an attachment of the property of the principal in his suit, still there is not found any agreement or holding out by Harris that he would rely solely on that attachment, or that he would prosecute that suit upon the note; and the case would stand in no way different if Clark had learned of the attachment in any other manner, for the statement of the attachment by Harris could have no greater legal effect than the existence of the attachment; Batchelder v. Sanborn, 24 N. H. 480; and in either case the defendant would be bound to know the legal right of Harris to discontinue that suit and look to the surety for payment of the note. Broom’s Leg. Max. *190. And certainly upon the facts stated by the referee the case stands no stronger for the defendant. It is at present unnecessary to say what our conclusion would have been if the referee had found that Clark applied to Harris to know if he should be held upon the note, in order that ho might act accordingly, and that Harris knowing this informed him or by his conduct and language induced him, exercising ordinary prudence, to believe that Harris intended to and would rely solely on his attachment, and that consequently the defendant lost an opportunity of securing himself, for this is not found in the report.

The payment of the amount of the note to Harris by the plaintiff was not of itself in law an extinguishment of the note; Chester v. Plaistow, 43 N. H. 544; and although Harris, when he received the money, did not understand that he was selling the note, yet, under the circumstances, his subsequent endorsement of the note at the plaintiff’s request, was evidence of a sale of it by him to the plaintiff.

The report must he recommitted.