[DOWNLOAD] "Julian Mccarty and John Wynn, Administrators of Enoch Mccarty, Deceased, Plaintiffs in Error v. Guernsey Y. Roots" by United States Supreme Court " Book PDF Kindle ePub Free
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- Title: Julian Mccarty and John Wynn, Administrators of Enoch Mccarty, Deceased, Plaintiffs in Error v. Guernsey Y. Roots
- Author : United States Supreme Court
- Release Date : January 01, 1858
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 77 KB
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Mr. Smith's points were the following: 1. That as the bill was received by the appellees after it was due, and dishonored, they took it with notice that it was subject to all prior equities between the parties. (Byles on Bills, 129, 130, and numerous authorities, tit. Transfer.) 2. That this case rests upon the same legal defence that could be set up in a suit between the endorsers of the bill as to their equities, if the action had been brought by one of them, after paying the bill, against the defendants. (The same authorities as above.) 3. That co-sureties are liable to contribution as between themselves, after the payment of the bill. (Byles on Bills, 199; Kemp v. Finder, 12 M. and W., 421; and authorities cited to fourth position.) 4. That if one co-surety takes up the bill, he cannot maintain an action upon it against a co-surety, but may use it as evidence of the amount paid, in an action of assumpsit for money laid out and expended, in which he may recover in contribution the equitable pro rata proportion of the money he has actually paid, from his co-surety. (Done v. Whalley, 17 L. J., 225; Exch. 2 Exch., Rep. 198, S. C.; Gale v. Wash, 5 T. R., 239; Rogers v. Stephens, 2 T. R., 713; Orr v. Maginnis, 7 East., 359.) 5. That although the endorsers are prima facie liable to each other, in the order in which their names stand upon the bill, yet it lies in averment in the pleadings that they are co-sureties, and parol proof is admissible, as between them, to show the true state of their liability. The same principle applies in suits brought by an endorsee of the bill against a remote endorser, when the bill was taken after it was due and dishonored. (14 Vesey, 170; Byles on Bills, 192, and notes, Ed. 1853; 9 Met., 511; 7 Cush., 404; 4 N. H., 221; 5 Denio, 307; 9 Ala., 949; 28 Maine, 280; 34 ib., 549; 5 How., 278; 21 Pick., 195; 2 Selden, N. Y., 33; 2 Ired., 597; 18 Ohio R., 441.) 6. That if the principal places funds or property in the hands of one co-surety, sufficient to pay the bill in trust for that purpose, and such co-surety takes up the bill from the holder, he cannot sue his co-surety on the bill, nor for contribution, until he has exhausted the assets in his hands of the principal. (8 Pick., 155; 16 Ala., 455; 21 ib., 779; Adams's Equity, Ed. 1855.) 7. That time given by the holder to one co-surety for the payment of the bill, to the prejudice of another co-surety, upon a contract binding upon the holder, without the assent of the other co-surety, discharges such other co-surety from liability upon the bill. (9 Conn., 261; 2 Wheaton, 253; 2 Story, 416; 21 Wendell, 108; 2 McLean, 111; 10 N. H., 359; 18 Conn., 361; 3 McLean, 74.) It is admitted that these authorities speak of principal and surety, but we maintain that the principles decided apply to the holder and a co-surety, the case before this court.