Witherby v. Mann
New York Supreme Court
THIS was an action of assumpsit on a special agreement to indemnify, and on the money counts. It was tried at the Chenango circuit, in June, 1814, before Mr. Justice Spencer. ° ’ . . . , The plaintiff had, on the 30th of July, 1812, joined with . . . J the delendants, as their surety, in a promissory note to U. van*. derlyn for 89 dollars and 53 cents, payable in three different instalments.
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THIS was an action of assumpsit on a special agreement to indemnify, and on the money counts. It was tried at the Chenango circuit, in June, 1814, before Mr. Justice Spencer. ° ’ . . . , The plaintiff had, on the 30th of July, 1812, joined with . . . J the delendants, as their surety, in a promissory note to U. van*. derlyn for 89 dollars and 53 cents, payable in three different instalments. The defendants, on the same day, entered into a written agreement with the plaintiff to keep him harmless from a^ costsi trouble, and damages, by reason of his signing the note. Judgments were recovered…
1Opinion of the CourtYates, J.
The questions js whether the note given for the payment of 52 dollars and If cents, is such an extinguishment of the debt due on the judgment, for the last instalment, as to authorize this action either on the special agreement or the money counts.
The mere giving a bond for the debt of another is no payment; and an action for money paid, laid out, and expended for the use of the person for whose debt the obligation is given, will not lie. The money must actually be advanced, to sustain the action. (Cummings v. Hackley, 8 Johns. Rep. 202.) But this principle has not been extended to all kinds…
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