Bruce v. Lytle
New York Supreme Court
This was a motion to set aside the report of a referee, and judgment thereon. The suit was on a note for $250, made by Woodin & Osborne copartners, payable to Lytle or order in one year, and dated April 7th, 1849. The parties all resided in Salem.
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This was a motion to set aside the report of a referee, and judgment thereon. The suit was on a note for $250, made by Woodin & Osborne copartners, payable to Lytle or order in one year, and dated April 7th, 1849. The parties all resided in Salem. On the 27th of October, 1849, Woodin & Osborne being insolvent, made an assignmenf of all their property to the defendant Lytle and J. K. McFarland, in trust to pay their debts, in the order therein stated; this debt being in the first class. A witness testified, that on Tuesday the 9th of April, Lytle said to the plaintiff, he would be up the next…
1Opinion of the Court
By the Court, Hand, J.
The defendant Lytle was entitled to judgment, unless the assignment to him, or his promise to pay, renders him liable without demand and notice. The insolvency of the makers did not excuse want of demand. (Chit, on Bills, 449. Story on Bills, §§ 326, 346.) Absconding would. (Taylor v. Snyder, 3 Denio, 151. Chit, on Bills, Perk. ed. 354, n. Story on Bills, § 327.) But the proof does not show that either of the makers could be considered as having absconded when the note matured. Osborne was there, and Wooclin had been but a few months before, and was probably then in…
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