Bank of Rutland v. Buck

5 Wend. 66

Opinion

By the Court,

Savage, Ch. J.

I can see no well founded objection to a recovery upon this note. It was drawn for the purpose of raising money for the accommodation of the two makers, Spear and Everest, who have had the benefit of it. Had House & Co. advanced money on it to those two makers, the case would be precisely within the case of Powell v. Waters, 17 Johns. R. 176. It was immaterial to the surety who advanced the money, provided Spear and Everest had the benefit, of it. It did not alter his responsibility; nor was there any fraud in House & Co. taking the note for a debt due to them. It passed to the credit of Spear and Everest.

In the case of Woodhull v. Holmes, 10 Johns. R. 231, the court decided upon the fact of fraud in pulling the note in circulation, because the maker intended to borrow money upon it for his own use. in Skelding v. Haight, 15 Johns. R. 274, a fraud was committed, to which the plaintifls were privy, in putting the note in circulation after the makers had failed.

Here, had the plaintiffs obtained a discount at the bank, they might have paid the money to House & Co. and Buck’s liability would have been the same; his situation is not changed, nor is there any fraud.

The case of Marvin v. McCullum, 20 Johns. R. 288, and Chenango Bank v. Hyde, 4 Cowen, 567, are authorities shewing the right of the plaintiffs to recover.

Judgment for plaintiffs.