Clergue v. Humphrey

action by reason of their having been made third party .hereto.

J.-This appeal, we thini, must be dismissed with costs.

Before the Judicature Act, a declaration in an action on a foreign judgment might contain counts upon the original consideration upon which the judgment was obtained, and the plaintiff failing to prove the judgment, might recover on the original consideration.

We do not think the Judicature Act which requires the cause of action to be briefly stated on the writ of summons, and the fact, that on the writ of summons, in this case, was indorsed a statement that the plaintiff's claim was on a judgment recovered in the Supreme Court of the State of Maine, for a sum stated, have the '* effect of preventing the plaintiff inserting in his statement of claim a count as formerly upon the original J. consideration.

To the statement of claim, which declared upon the judgment and also a note which was the original consideration, the defendant pleaded to both claims. As to the note he pleaded the statute of limitations and as to that plea must fail, unless he should succeed in establishing, as he contends, that the date of the commencement of the action, as regards the claim upon the note, must be the day of filing the statement of claim and not the day of issue of the writ of summons. We do not think that this contention can prevail, the sole effect of which could be to bar a claim which appears to be quite just. But, apart from consideration of the effect of such contention prevailing, we do not think it well founded.

Then, as to the merits of the claim on the note, we are not troubled with considering the point so much urged at the trial and before us as to what the law is in the State of Maine as to the liability of guarrantors of the debt of another, or as to what is the difference between the liability of guarantors and sureties, for we have no difficulty in holding, upon the evidence, that the makers of the note sued upon, namely the defendant and his law partner, were the sole principals in the transaction.

The contention of the defendant was that the advance was made to a company whose guarantor only the defendant was, and that by the law of Maine a guarantor cannot be sued until his principal is put in default, but he himself admitted that it was he who applied for the loan for which the note was given - that his partner was president and he himself a director of several companies, the consolidation of all which into one he was then engaged in promoting.

It was, as the lender (of whose will the present plaintiffs are executors) in his lifetime testified, to assist the defendant in promoting the consolidatien in which he J. was engaged that the advance was made to him, and it was to secure payment of this loan that the note sued upon was made. Now, whether the consolidation so in promotion did take place and if so when, matters not, for when the loan was made at the defendant's request, the consolidated company was not in existence, and so could not have become the principal debtor, but whether it was to the consolidated company or to one of the several companies the consolidation of which the defendant was engaged in promoting that the defendant now contends the advance was made the evidence fails to show that the testator

(whose executors the plaintiffs are) who advanced the money into the hands of the defendant and received the note as his sole security ever dealt with any company or with any other persons than the makers of the note, as principals in the transaction.

The appeal must be dismissed with costs.

Appeal dismissed with costs.

Nesbit, Chadwick

& Riddell.