Assumpsit, to recover the amount of the defendant’s promissory note. A referee found for the plaintiff, subject to the opinion of the court, upon the following facts: June 5, 1870, James R. Thurston hired $350 of the plaintiff, giving as security a mortgage of his homestead with the usual covenants of warranty. The homestead was then in fact subject to a prior mortgage, given by this defendant to Elias Towle to secure the note now in suit.
Cited by 1 later decisions — most recently June 1900
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
It is contended that the plaintiff, by bringing an action of covenant broken against Thurston, based on the incumbrance of the Towle mortgage, and settling it by taking Thurston’s, worthless note, on which he has received nothing, is barred from maintaining this action. It is a sufficient answer to this claim, that the note in suit was not included in the settlement of that action, and there is no suggestion either that the note has ever been paid by the defendant, or by any one for him, or that the defendant ought not to pay it, or that the plaintiff is not a
bona fide
holder of it.
