Cutter v. Rathbun
New York Supreme Court
Replevin, tried at the Cayuga circuit, in October, 1841,before Moseley, C. Judge. The plaintiffs were merchants in the city of New-York. They alleged that on the 14th of October, 1840, Robert Muir, being insolvent, fraudulently represented himself to be the agent of one Bennett, and thus got the goods in question of them in Bennett’s name. Muir signed a note for the price in Bennett’s name, and the goods were charged on the plaintiffs’ books to Bennett.
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Replevin, tried at the Cayuga circuit, in October, 1841,before Moseley, C. Judge. The plaintiffs were merchants in the city of New-York. They alleged that on the 14th of October, 1840, Robert Muir, being insolvent, fraudulently represented himself to be the agent of one Bennett, and thus got the goods in question of them in Bennett’s name. Muir signed a note for the price in Bennett’s name, and the goods were charged on the plaintiffs’ books to Bennett. The latter resided at Auburn, Cayuga county, to which place the goods were sent. After their arrival, the defendant, who was sheriff of…
1Opinion of the Court
By the Court, Cowen, J.
The objection to the competency of Bennett was that, by sustaining the plaintiffs’ claim and enabling them to recover the value of the goods in this action against the sheriff, he, the witness, would, in effect, discharge himself. Something resembling this has been held in actions arising ex contractu against one who denies that he made the contract, but sets up as a defence that it was made by the witness. In such case, the witness, appearing to be prima facie liable, is said, on being offered by the plaintiff, to be *579interested to testify in his favor ; because, by…
2Cases cited5 opinions
- Livingston v. BishopNew York Supreme Court · 1806
- Marquand v. WebbNew York Supreme Court · 1819
- Collins v. EllisNew York Supreme Court · 1839
- Dudley v. BollesNew York Supreme Court · 1840
- Walsh & Mallory v. OstranderNew York Supreme Court · 1839