Vaughn v. Rugg
Supreme Court of Vermont
The first of these causes was general assumpsit, with specification of a promissory note signed by one McAllister as principal, and the defendant as surety: plea, general issue, with notice of special matter. The cause came on for trial at the April Term, •1878, in Eranldin County. The plaintiff offered the note in. evidence, but the defendant objected to its introduction, for that he was surety only, and that the note was, therefore, inadmissible under the common counts.
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The first of these causes was general assumpsit, with specification of a promissory note signed by one McAllister as principal, and the defendant as surety: plea, general issue, with notice of special matter. The cause came on for trial at the April Term, •1878, in Eranldin County. The plaintiff offered the note in. evidence, but the defendant objected to its introduction, for that he was surety only, and that the note was, therefore, inadmissible under the common counts. The court excluded the note, and the cause was continued. The plaintiff afterwards filed a new declaration counting…
1Opinion of the Court
The opinion of the court was delivered by
Barrett, J.
The word surety affixed to the name of the maker of a promissory note, does not show that he stands in such a relation to the transaction of giving it that he may not be liable to a recovery against himself on a common count for money had and received, or for money lent, or for money paid out. ' Hence, under those counts the note in the first instance would be admissible in evidence, and would warrant a judgment for the plaintiff. If the defendant would avoid the rendering of such judgment, he would need to show that in fact he did not have…
2Cases cited1 opinion
- D. Dewey & Co. v. NicholasSupreme Court of Vermont · 1871
3Cited by2 opinions
- Appliance Acceptance Co. v. StevensSupreme Court of Vermont · 1960
- Roulland v. GrayCalifornia Court of Appeal · 1916