Mack v. Baker

¶1After consideration I do not doubt the correctness of the decision of the supreme court of the state in Royer v. Bank, supra. There is an extra-judicial remark of Story, J., in Swift v. Tyson, 16 Pet. [41 U. S.] 15, in which he holds that the taking of a note, simply as collateral security, is a sufficient consideration and gives the purchaser a better title than the indorser had; but this is no part of the real decision, which is that, where the note is taken in payment, the consi deration is sufficient. Where time or indulgence is given, or something done to change the relation of the parties to the original consideration, the ease is different, but here the defence is sufficient according to Royer v. Bank. The doubt I had of the case was as to the renewal of the note,— whether that was not equivalent to giving time. It is so generally, unless the ordinary effect is negatived by peculiar circumstances. Here the time given was on the collateral and not on the original debt, and could not suspend the right of action, as has been often decided. It is unnecessary to consider the supplemental affidavit. Rule discharged.