Miller v. Gaston
New York Supreme Court
Assumpsit, tried before Moseley, 0. Judge, at the Cayuga circuit, in October, 1840. The suit was brought under the statute of 1832, authorizing the joining of several parties to a note or bill in one action. The defendants were Aaron Hovey, Lindley P. Hovey, and Gaston. The declaration contained the money counts, and the plaintiff served with it a copy of the instruments given in evidence.
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Assumpsit, tried before Moseley, 0. Judge, at the Cayuga circuit, in October, 1840. The suit was brought under the statute of 1832, authorizing the joining of several parties to a note or bill in one action. The defendants were Aaron Hovey, Lindley P. Hovey, and Gaston. The declaration contained the money counts, and the plaintiff served with it a copy of the instruments given in evidence. On the trial the plaintiff offered in evidence a promissory note, as follows: “ $120. December 11, 1838. For value received, I promise to pay to Lindley P. Hovey or order, one hundred and twenty dollars,…
1Opinion of the Court
*190 By the Court,
Bronson, J.
The plaintiff has declared as upon a joint indebtedness by all of the defendants ; and whether he can sever the action and recover against one only, depends on the question whether all of the defendants have contracted an obligation, either as makers or indorsers, within the law merchant relating to promissory notes and bills of exchange. The statute has not provided for a severance in any other class of cases.
Neither Bindley P. Hovey nor Gaston was either maker or indorser of the note within the law merchant; and the suit was not well brought against them, or either…
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