Butler v. Rawson
Court for the Trial of Impeachments and Correction of Errors
Assumpsit, tried before Dayton, C. Judge, at the Genesee circuit in February,' 1844. The declaration contained the money counts, with a notice at the bottom that the plaintiff would give in evidence on the trial a promissory note, of which" the following is a copy : “ One year after date for value received, we jointly and severally promise to pay James Butler, or bearer, six hundred dollars with use. Webster, November 1 1842. Wm.
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Assumpsit, tried before Dayton, C. Judge, at the Genesee circuit in February,' 1844. The declaration contained the money counts, with a notice at the bottom that the plaintiff would give in evidence on the trial a promissory note, of which" the following is a copy : “ One year after date for value received, we jointly and severally promise to pay James Butler, or bearer, six hundred dollars with use. Webster, November 1 1842. Wm. Butler Joseph Rawson, Surety? Rawson pleaded, and Butler suffered judgment by default. On the trial the defendant Rawson-objected that the note could not be given in…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The rule is nearly or quite universal that there can be no recovery against a surety, where his character appears on the face of the instrument, without declaring specially on the contract. It is said that an action against the makers of a promissory note, which one of them has signed as a surety for the other, forms an exception to the rule ; and that in such a case the plaintiff may recover on the money counts. But there is a case in point the other way. (Wells v. Girling, 8 Taunt. 737.) This decision stands upon principle. In the common case of a suit against…
2Cases cited1 opinion
- Smith v. Van LoanNew York Supreme Court · 1837
3Cited by12 opinions
- The Oneida Bank v. . the Ontario BankNew York Court of Appeals · 1860
- Spear & Ripley v. MyersNew York Supreme Court · 1849
- Thurber v. JewettMichigan Supreme Court · 1854
- Balcom v. WoodruffNew York Supreme Court · 1849
- Clapp v. PrestonWisconsin Supreme Court · 1862
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