43 Vt. 314 | Vt. | 1871
The opinion of the court was delivered by
This was an action of assumpsit on a promissory note which the defendant signed as surety for one Sanderson. It was not claimed in the court below that the note in suit had ever been paid or discharged under the circumstances detailed in the exceptions, unless the receipt of the note, dated January 1st, 1869, operated as a payment or discharge. It was admitted that this last note as far as Bliss was concerned (and he was regarded by the plaintiff as the responsible party) was a forgery. The plaintiff received this note in good faith, and did not know but that the signatures to it were genuine until after the note in suit had been given up. Can the receipt of this note be regarded as a payment or extinguishment of the right of action upon the note in suit ? We think not. In the case of Puckford v. Max
In the case last cited, Judge Kent says that a promissory note and a bank note are equally promissory notes for the payment of money, and that there is no presumption that the receiver takes upon himself the risk of forgery. In Hughes v. Wheeler, 8 Cowen, 77, it was held that where an usurious note was given as a substitute for a valid note, which was destroyed by the parties, that an action lay on the original note. So that it is not material to inquire into the circumstances of the delivery of the note in suit to the defendant by Mrs. Goodrich, or what was said or done in connection with it. For in the view we have taken of the case, con
The judgment of the county court is affirmed.