JOSIAH SHEPLEY vs. A. B. STORY, 3 N.H. 63 (1824) - Opinion

The cause was submitted to the decision of the court, upon the following facts.

James Steele commenced an action against Shepley, founded on a promissory note, payable to one Phinehas Dunsmore, or order, and by him endorsed; and Story endorsed the original writ. Shepley gave notice of a set-off in the action, consisting of claims he had against Dunsmore. The action was sub-mined to referees, who reported, that Shepley should recover his costs against Sleek, taxed at ⅛10 19, upon which report judgment was rendered.

And it was agreed, that if the court should be of opinion, that Story was liable, judgment should be rendered for the plaintiff; otherwise, the plaintiff should become nonsuit.

By the court. The question lobe decided in this case is, whether the endorser of a writ is discharged from his liability, as sue!!, by a submission of the ac tion to arbitrators ?

It has been decided in Massachusetts, that bail are discharged by a reference of the action and all demands. 17 Mass. Rep. 591.

But, it seems that bail are not discharged, by a reference of tile action only. Tidd's Prac. 993. There is so close an analogy between the case of bail, and oí an endorser, that these authorities seem to us to bear directly upon the question in this case; and we are of opinion, that the defendant is liable.