Allen v. Rightmere
New York Supreme Court
THIS was an action of assumpsit, tried at the Cayuga Circuit, in May, 1822, before Mr. Justice Platt. Lewis Toan made a note, dated April 2, 1818, by which, for value received, he promised to pay the defendant, or order, six hundred dollars, on the first of April, then next, with interest.
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THIS was an action of assumpsit, tried at the Cayuga Circuit, in May, 1822, before Mr. Justice Platt. Lewis Toan made a note, dated April 2, 1818, by which, for value received, he promised to pay the defendant, or order, six hundred dollars, on the first of April, then next, with interest. The declaration contained three counts: The first count was against the defendant, as endorser of the note, in the usual form ; The second was upon his special guaranty endorsed on the note, in these words : “ For value recejve(jj j seji; assign, and guaranty the payment of the within note to John Allen, or…
1Opinion of the Court
Spencer, Ch. J.
delivered the opinion of the Court. Proof of demand and notice of non-payment were not necessary. The defendant’s engagement is, in effect, that Toan should pay the note, or that he would pay it. It is the duty of the debtor to seek the creditor, and pay his debt on the very day it becomes due. As regards the maker of the note, and to render him liable, no demand is necessary. A demand of payment is necessary only to fix an endorser or a surety, whose undertaking is conditional. An endorser does not absolutely engage to pay. It is a conditionál undertaking to pay, if the maker…
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