Cumpston v. McNair
New York Supreme Court
This was an action of assumpsit, tried at the Cayuga circuit in June, 1827, before the Hon. Samuel Nelson, one of the circuit judges.
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This was an action of assumpsit, tried at the Cayuga circuit in June, 1827, before the Hon. Samuel Nelson, one of the circuit judges. The plaintiff declared specially, setting forth a transfer from the defendant to George Leitch, the intestate, of a promissory note, purporting to be made by Abraham Drake and William Wheeler, bearing date 29th December, 1818, for the sum of $450,50, payable to the defendant or bearer, and signed “Drake & Wheelerand that by a note or memorandum endorsed upon the same, the defendant undertook and promised the intestate, to guaranty the collection of the money…
1Opinion of the Court
By the Court,
Sutherland, J.
The plaintiffs were bound to endeavor to collect the note from Drake and Wheeler, before they could resort to the defendant. He guaranteed the collection of the note to Leitch, the intestate. The very terms imply that measures to collect it from the principals were first to be used, and the defendant’s contract or guaranty was, that those measures should be successful; if not, that he would pay the note and costs. It is precisely equivalent to a guaranty, that the note was collectable, by due course of law, for it can be collected, that is, payment of it enforced…
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- Allen v. RundleSupreme Court of Connecticut · 1882
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- The Nat. Bk. of Watertown v. . LandonNew York Court of Appeals · 1871
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