Lansing v. M'Killip
New York Supreme Court
ASSUMPSIT, on a special agreement, in consideration of a horse, and divers goods and merchandizes, to deliver, for value received, forty dollars worth of merchantable boards. At the trial, the plaintiff adduced the subscribing witness to the note, who testified that the horse was the only consideration. Upon this, the defendant moved for-a nonsuit, insisting that the plaintiff was bound to prove all the several considerations, as laid.
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ASSUMPSIT, on a special agreement, in consideration of a horse, and divers goods and merchandizes, to deliver, for value received, forty dollars worth of merchantable boards. At the trial, the plaintiff adduced the subscribing witness to the note, who testified that the horse was the only consideration. Upon this, the defendant moved for-a nonsuit, insisting that the plaintiff was bound to prove all the several considerations, as laid. The judge, ruling to the contrary, charged in favor of the plaintiff, for whom the jury found. The application now was to set aside that verdict. If a promise…
1Opinion of the CourtSpencer, J.
If the averment of a consideration on anote like the one in this case, was necessary, then the plaintiff by averring- a consideration which did not exist, has failed in his proof j for if two considerations be alleged, as the foundation of a promise, both must be proved. Cro. Jac. 503. Esp. Dig. 133, 9. If, however, the admission of value by this paper, is of itself sufficient, then the averment of a consideration would be surplusage, and might have been struck out on motion, and therefore cannot vitiate.
That the present is not a promissory note within the statute will not be disputed; it is…
2Cited by6 opinions
- Jerome v. WhitneyNew York Supreme Court · 1811
- Jackson ex dem. Hudson v. AlexanderNew York Supreme Court · 1808
- Curley v. DeanSupreme Court of Connecticut · 1822
- Stone v. WhiteMassachusetts Supreme Judicial Court · 1857
- Douglass v. DavieSupreme Court of South Carolina · 1822
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