Pigou v. French

19 F. Cas. 683, 1 Wash. C. C. 278

Opinion

WASHINGTON, Circuit Justice.

The plaintiff cannot recover the two sums for which he became surety for the defendant, without showing that he had paid them before action brought; and, the jury ought not to presume it, from the circumstance of his having before become liable to pay, and the good character of the plaintiff. Indeed, the presumption would be otherwise; since his liability arose in October, and, if he had paid those sums, it would have been easy to prove it at this day. As to the bill of exchange, the plaintiff holds it as an agent and creditor of the defendant; and so it is plain that the plaintiff understood it. It is a collateral security, which he is entitled to retain; and, he will not be accountable for the amount of it, until he has received it.