| Superior Court of New Hampshire | Dec 15, 1840
When this case was first opened, in the common pleas, 1 had great doubts whether the plaintiffs could sustain their action, against the rights of other creditors who had made subsequent attachments upon the same property. The plaintiffs, upon the execution of the note, had in fact no debt against the defendant, such as appeared, on the face of the note itself, to exist; and it is very clear that securities of this kind are not the most appropriate evidences of contracts to indemnify the payee, for an existing liability as a surety for the maker. Purporting, as it does, upon its face, to be an absolute contract for the payment of the sum of money therein specified, and to be evidence of an existing debt to that amount, a note is objectionable on account of the use which may be made of it, to deceive other creditors, who have ordinarily but limited means of knowledge, and proof, respecting its true consideration. A mortgage would, undoubtedly, better exhibit the true state of the case.
But on the other hand, if a mortgage has not been given, justice may be promoted by permitting a surety to take from his principal some obligation, upon which he may acquire a lien upon the property of the principal, and provide security for his indemnity, in case of need, before he has actually been compelled to pay the money. And securities for this purpose appear, from, the authorities cited, to have been sane-
We do not perceive any solid ground of distinction, where the payee is surety in an administration bond, and where he is surety in some obligation, in terms for the payment of money. A liability of one kind is as meritorious as the other. The result in both, if enforced against the surety, is to compel him to pay a sum of money.
It may, perhaps, be said, that the true ground of the defence is want or failure of consideration ; for if there is a sufficient consideration for the promise to pay a sum of money, there is no fraud in executing a note promising to pay it. And if a liability as surety may be held to be a good consideration for a note, the consideration must remain good to the extent of the money which has subsequently been paid upon the liability. In this case the sum of $2-000 was paid by the plaintiff, upon the liability, before the trial. If the liability itself was a sufficient consideration to uphold the note, as a cause of action, when it was executed, either upon the express, or an implied, promise of the payee, it must be held good to the amount of the payment which has been made. To that extent the consideration, certainly, has not failed. On the contrary, it has been perfected, if that term is admissible. Beyond the amount which has been paid, or which the payee has assumed, absolutely, before the judgment, the consideration must be deemed to have failed. 13 Pick. R. 426.
There is, perhaps, no sufficient objection to holding, that an existing, continuing liability, as surety for another, is such a damage to the party that it will form a sufficient consideration for a promissory note. It is clearly a good consideration for a mortgage, and it has been held a sufficient consideration to sustain an absolute conveyance. 5 N. H. Rep. 81, Buffum vs. Green.
There is undoubtedly something anomalous in sustaining an action upon a note for a large sum, which on the institu
But the precedents which have been cited in Massachusetts justify such a course, and the objections to it do not appear sufficient to require us to adopt a different principle.
New trial granted.