Morange v. Mudge

6 Abb. Pr. 243

Opinion

Davies, J.

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

In 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. .

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

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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.