Mack v. Spencer
New York Supreme Court
This was an action of assumpsit, tried at the Madison circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained two counts. The first was on a promissory note, payable to H. B. or bearer, transferred to the plaintiff.
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This was an action of assumpsit, tried at the Madison circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained two counts. The first was on a promissory note, payable to H. B. or bearer, transferred to the plaintiff. The count stated, “ for that whereas the defendants on, See. at, Sec. made their certain note in writing, commonly called a promissory note, bearing date, dec. and then and there delivered the said note to one H. B. and thereby then and there promised to pay to H. B. or bearer, dec.” The second was a general count for money…
1Opinion of the Court
By the Court,
Savage, Ch. J.
It is usual to state in the declaration that the defendants were partners, or that they made the note by the name, style and description of their firm. (3 Chitty’s Pl. 2.) In The Manhattan Company v. Ledyard, (1 Caines, 192,) the question did not arise whether the averment of partnership was necessary, but whether it was sustained by [proving that one of the firm made the note in, the name of the firm. The case of Pease v. Morgan, (7 Johns. R. 468,] was decided on the ground of variance. The dec-, laration in that case, as here, was without any averment that the…
2Cases cited1 opinion
- President of Manhattan Co. v. Ledyard & LedyardNew York Supreme Court · 1803
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