Herrick v. Whitney
New York Supreme Court
THIS was an action of assumpsit, on a promissory note, . x v * dated March 6th, 1816, payable in six months to John Fitch, or bearer, and executed by the defendants. The cause was tried before Mr. J. Platt, at the Oneida circuit.
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THIS was an action of assumpsit, on a promissory note, . x v * dated March 6th, 1816, payable in six months to John Fitch, or bearer, and executed by the defendants. The cause was tried before Mr. J. Platt, at the Oneida circuit. Fitch was called by the plaintiff as a witness to prove the execution of the note by the defendants, and stated that he the note to one Cummings in payment for a pair 0f horses, but at the risk of Cummings, as to the solvency of ’ ° 1 J the makers, and that he had no interest in the suit. . The defendants’ counsel objected to the competency óf the witness;' the…
1Per curiam
The witness was responsible upon an implied warranty that the note was not forged. He, therefore, had a direct interest in establishing the fact which he was called to prove; for by obtaining a verdict for the plaintiff, on the plea of non assumpsit, he protected himself against his own warranty.
Judgment for the defendants.(a)
• (a) A forged note is not payment of goods sold, and the seller may treat it as a nullity, and bring his action on the original contract. (Markle. v. Hatfield, 2 Johns. Rep. 455.) The vendor of a chattel, being liable to the vendee on the implied warranty of title, is…
2Cited by21 opinions
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- Crocker-Woolworth National Bank v. Nevada BankCalifornia Supreme Court · 1903
- Bruce v. WestcottNew York Supreme Court · 1848
- Alleman v. WheelerIndiana Supreme Court · 1885
- Seckerson v. SinclairNorth Dakota Supreme Court · 1913
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