The defendant is sued as endorser of notes which, within six years, he promised to pay. The notes were payable to a firm of which he was a member, and were endorsed by the firm, and also by him. If the action is brought against him as surviving partner, another count, declaring against him as an individual endorser, will justly dispose of the question of the capacity in which he made the new promise. The plaintiff's foreclosure of the mortgage by which the notes were secured was a payment to the amount of the value of the land. Dearborn v. Nelson, 61 N.H. 249; Fletcher v. Chamberlin,61 N.H. 438, 493, 494. The value is a matter of fact to be determined at the trial term. The debt is not barred by the statute of limitations. There is nothing to avoid the new and absolute promise.
Case discharged.
SMITH, J., did not sit: the others concurred. *Page 278