Kirkpatrick v. Howk

Citations

• 80 Ill. 122

Syllabus

<p>1... Sureties—property pledged by the principal debtor. It is a well settled principle in equity, that a creditor who has the personal contract of his debtor, with a suret}', and takes property from the principal as a pledge or security for his debt, should hold the property for the benefit of the surety as well as himself, and if he parts with it without the knowledge or against the will of the surety, he shall lose his claim against the surety to the amount of the property so surrendered. Property so taken by the creditor is taken and held in trust, not only for the creditor’s security, but for the surety’s indemnity. And these rules of equity are recognized and enforced in courts of law.</p> <p>2. A party signed a note, as surety, with the principal, and delivered it to the principal, with authority to insert the name of a payee in a blank left in the note for that purpose. The principal borrowed of the plaintiff the amount of money the note called for, and inserted his name therein as payee, and delivered the note to him, and at the same time, as additional security for the money, delivered, in pledge, a coll worth $100. The colt was afterwards delivered up by the payee of the note to the principal: Held, in a suit brought on the note, against the surety, that the plaintiff could only recover the balance due on the note after deducting the valúe of the colt.</p> <p>3. Evidence—proof of promises or declaration of a principal in suit against surety. When a joint suit is brought against the principal and surety in a promissory note, but the surety alone is in court, and the principal testifies, as a witness, that the note has been paid, evidence as to any promise or declarations made by the principal after the time he testified the note was paid, is not competent against the surety, the principal, in such case, not being a party to the action.</p> <p>4. Where one of the makers of a promissory note, who was not a party to an action brought on it, testified on beh