Little v. Ingalls

13 N.H. 44 | Superior Court of New Hampshire | 1842

Parker, C. J.

Upon the case before us, we are of opinion that this action cannot be maintained.

When the plaintiff indorsed the note to Smith, the property and interest in it were transferred to him. Upon the non-payment by the defendant, and notice to the plaintiff, Smith had a several right of action against both. His prosecution of a suit, and the rendition of a judgment against the plaintiff as indorser, even if it had been rendered before the present suit was commenced, could not have operated as a re-transfer of the note to the plaintiff. Smith had still a right to prosecute a suit against the1 defendant, upon the note, declaring as indorsee. Nor can the part payment by the plaintiff alter the case. Smith is still entitled to sustain a suit against the defendant, on the note, in order to obtain the balance. But the maker cannot be liable to the indorser and to the indorsee in separate actions, on the same note, at the same time. In order to sustain this action, we must hold that the interest in the note had revested in the plaintiff before the suit was commenced. See 11 Wend. R. 27, Waggoner vs. Colvin. But this we cannot do.

Upon payment of the judgment against him, the plaintiff may have the right to commence an action on the note, upon the ground that such payment revests the property of it.

Whether he could maintain an action for money paid, against the defendant, to recover the amount collected of him, until payment of the whole money, or even afterwards, need not be determined at this time.

Plaintiff nonsuit.