Morange v. Mudge

Decided December 15, 1857

New York Supreme Court · decided 1857-12-15

The action was brought on an undertaking given by the defendant Mudge, together with J. A. Martin, in proceedings of ■claim and delivery, taken by one Mathews, in an action for chattels, brought by him against one Descombes. The undertaking was for the prosecution of the action, and a return of the chattels taken in the proceedings, if a return should be adjudged,, and for payment to the defendant in that action of such sum as-might for any cause be recovered by him.

Cited by 2 later decisions — most recently January 1892

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1857-12-15

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Davies, J.

¶1Shaw v. Tobias (3 Comst., 188) is an authority.*247for holding that the complaint in this case contains all needful averments. This doctrine is reaffirmed in Slack v. Heath (1 Abbotts' Pr. R., 334).

¶2In Yorks v. Peck (14 Barb., 647) this court says: “In all cases of a joint note given upon a joint loan of money, or a joint liability of any kind, it will be presumed it was intended the note should be several as well as joint, and effect will be given to it according to that intention.” So in this case the undertaking will be presumed to be several; and in accordance with section 120 of the Code, the action may be against either of the parties to the instrument. .

¶3Judgment for the plaintiff on the demurrer, with leave to defendant to answer.*

¶4 The terms imposed by the order entered were, service of answer in ten days, and payment of the costs in the cause, including the trial of the issue of law on the demurrer.