20 Me. 28 | Me. | 1841
The opinion of the Court was by
— The defendant was the guarantor of a bill or draft, which was proved to have been presented and regular notice to have been given to the other parties to it, if the cashier of the bank was a competent witness. The decisions appear to have been uniform, that one so situated is a competent witness, when it does not appear, that he would be liable to the plaintiff, if he fathed to recover against the defendant. «And there was no sufficient proof of it in this case.
When the guaranty is made at the time of the original promise and becomes an essential ground of the contract with the principal, the consideration between the principals to the contract constitutes also a sufficient consideration for the guaranty,
The requested instructions were properly witheld, because they required proof of the inability of the principals to pay to extend to the time when the draft became payable ; and the
The defendant is not the less a party to the contract because he is liable only collaterally and not in the first instance.- The ground, upon which the consideration for his promise is held to be sufficient, is, that he was so connected with the contract between the other parties, that the consideration of their promise was that of his also. It is the very contract, which he engages to pay, that is alleged to be tainted with usury; and he may prove it to be illegal, as - well as defective in any other manner to prevent a recovery in part dr in the whole. '
The testimony offered to prove, that interest at the rate of more -than six per cent, per annum was included in the draft should have been received, and there must therefore be a new trial.