Jewett v. Stevens

6 N.H. 80

Opinion

By the court.

It was supposed, at the time this action was tried, that, if the money was in fact borrowed of W.s for the use of S. D. Stevens, N. D. Stevens must be considered as a surety entitled to the benefit of the security which the plaintiff had in the land. But this is a mistake. He cannot be considered as a co-surety with the plaintiff, for he did not sign the note to W., on which the $100 was advanced. This note was delivered to the plaintiff, as a security, by both the defendants, and, in relation to him, they are both principals. It was, therefore, wholly immaterial whether the money was borrowed, of W., for the use of both the defendants, or not.

If it had been material, to the plaintiff, to prove that the money was, in fact, borrowed for the benefit of both the defendants, the affidavit of S. D. Stevens would not have been competent evidence to prove that fact. 6 Pick. 464, Robbins v. Willard; 5 ditto, 414; 3 Starkie’s Ev. 1072; 1 Starkie’s Rep. 81; 10 Johns. 216 and 66; 14 Johns. 215.

But it now appearing that the affidavit was admitted to prove what was wholly immaterial in the decision of the cause, its admission furnishes no just ground for a new trial.

Judgment on the verdict.