Herrick v. Whitney

15 Johns. 240

• Court: New York Supreme Court
• Decided: May 15, 1818
• Status: Published

Opinion

Per 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 not a competent witness in an action against the vendee by a person claiming it. (Heermance v. Vernoy, 6 Johns. Rep. 5.) For the same reason, the grantor of land, with warranty, express or implied, is inadmissible in support of his grantee’s title. (Jackson and Caldwell, v. Hallenbackf 2 Johns. Rep. 394. Swift v= Qeant 6 Johns. Rep. 523. Smith v. Chambers, 4 Esp. Rep. 164.)