6 Pa. 51 | Pa. | 1847
We concur with the judge who tried the cause on all the points but one. The suit was brought to let the plaintiff into the benefit of the security held by the bank as a stakeholder; and it therefore stands on no higher ground than if it were brought against the maker of the note, who would be ultimately liable to bear the loss were the plaintiffs to succeed against the bank. The suit is, in substance, therefore, an application to be substituted for the bank. But there is no substitution where,the debt is discharged between the surety and the principal, or where it is barred by the statute of limitations; as was held in Fink v. Mehaffy, 8 Watts, 324; Bank of Pennsylvania v. Potius, 10 Watts, 152; and in this case it was barred on the principle of Kennedy v. Carpenter, 2 Whart. Rep. 344, in which it' was ruled that an endorsee of an accommodation note can recover from the maker only on the contract of endorsement, and not on an implied assumpsit for money subsequently paid to his use within six years before suit brought. Now the note, which is in this instance the meritorious cause of action, was payable in March, 1833; and at that time the plaintiff, as payee, might have sued the maker; but this suit was brought against the bank to August Term, 1843, and he shall not get round the statute of limitations by compelling the bank to enforce its security against the principal. It is scarce necessary to say that parol evidence of the contents of the lost record was properly received.
Judgment reversed, and venire de novo awarded.