Smith v. Hunter

Ray, J.

Hunter sued Smith and one Voltz on a note executed November 20th, 1866, by Yoltz as principal and Smith as surety, payable to the order of Yater & Bro., and which the complainant alleges was assigned by said payee to the plaintiff.

It is objected that a copy of the assignment is not set out. The fact is averred, and the action against Smith is not on the assignment. Again, it is objected that the instrument is not alleged to be stamped, and no copy of a stamp is set out. It has been held, in Lynch v. Morse, 97 Mass. 458 , and Carpenter v. Snelling, Id. 452, and in Hanford v. Obrecht, 49 Ill. 146 , that the act of Congress on this subject controls alone the courts of the United States. But however this may be, it is clear, that as the act in force when this note was executed only applied to; instruments where the stamp was omitted with intent .to defraud the government, no allegation anticipating such a defense is required. The complaint was sufficient.

A second paragraph of answer was filed as a partial defense. It alleged that the plaintiff held the note in suit as collateral security for a debt of thirteen hundred dollars and that the appellant was simply a surety on said note; *107 that the plaintiff received as collateral security ©thef good notes at the same time, and had obtained a judgment upon one of them for eight hundred dollars, which was collectable. A demurrer was sustained to this paragraph. The ruling was correct. Until the debt was paid the plaintiff could avail himself of any and all of his securities to the extent of his claim.

E. P. Ferris and H. T. Lipperd, for appellant. J. D. Haynes, for appellee.

Judgment affirmed, with six per cent, damages and costs.