| Superior Court of New Hampshire | May 15, 1832
delivered the opinion of the court.
The defendants, in this case, gave the note on account of Wyatt, who promised to replace the money on his return from Canada ; and all this was known to the plaintiff. The defendants, then, are, in our opinion, entitled' to stand on the ground of sureties with respect to the plaintiff, in the same manner as if Wyatt’s name had been upon this note as a principal.
Now, under these circumstances, it seems to us that, if, at the time Wyatt brought the money to the plaintiff, the latter did nothing more than insist that the money should be applied to pay the Caverly note, without any agreement on the part of the plaintiff to give Wyatt day of payment, as to the money due on this note, there is no just ground of complaint on the part of these defendants. This was no more than he had a right to do.
But if, in order to induce Wyatt to take up the Caverly note, or with a view to accommodate Wyatt with the money to buy military caps, the plaintiff agreed, without the assent of the defendants, to give Wyatt day of payment as to the money due on this note, then, in either of those cases, it seems to us, that the offer of Wyatt to pay this note, ought, in equity and good conscience, under the circumstances, and between these parties, to be considered as a payment, and the agreement between the plaintiff and Wyatt, that the latter should have day of payment, as a new loan of the money to Wyatt. The plaintiff knew that Wyatt had agreed to replace the money, on his return from Canada, and had no right to give day of payment beyond the time agreed, without the-consent of the defendants.
If the plaintiff agreed to give time, it must have been with an understanding that Wyatt was to pay interest,, and this was a good consideration for the agreement.
We are of opinion, in this case, that, instead of the direction given to the jury, it ought to have been left to. them to say whether there was a contract to give Wyatt.
„\⅛ trial granted.