Webbers' Executors v. Blunt
New York Supreme Court
Demurrer to declaration. In the first count it was stated that Webbers, in his life time, being sheriff of. the county of Westchester, having arrested one Edmund M. Blunt, by virtue of an attachment out of chancery for costs, the defendant, Joseph Blunt, represented to Webbers that the attachment had improperly issued, that the costs had been paid, and that Webbers ought not to hold E. M. Blunt in custody; and in consideration that Webbers would discharge him,, the defendant…
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Demurrer to declaration. In the first count it was stated that Webbers, in his life time, being sheriff of. the county of Westchester, having arrested one Edmund M. Blunt, by virtue of an attachment out of chancery for costs, the defendant, Joseph Blunt, represented to Webbers that the attachment had improperly issued, that the costs had been paid, and that Webbers ought not to hold E. M. Blunt in custody; and in consideration that Webbers would discharge him,, the defendant promised to indemnify Webbers ; that Webbers, confiding in the truth of ¡‘such representation, and in consideration of…
1Opinion of the Court
By the Court,
Cowen, J.
Admitting the discharge to have been lawful, the third count is clearly bad. It represents the defendant a mere volunteer on a past consideration, a discharge from the attachment without his request, 1 Chitty’s PI. 263, ed. of 1823; and the cases there cited, and for the exclusive benefit of a third person, promising to indemnify the sheriff. It is true we must intend that this promise was in writing; but written or unwritten, being a mere nudum pactum, there is neither principle nor authority in the law which goes in the least to sustain it.
The first and second counts…
2Cases cited1 opinion
- Ames v. WebbersNew York Supreme Court · 1832
3Cited by5 opinions
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- Moss v. CohenNew York Court of Common Pleas · 1895
- State v. ApleyNorth Dakota Supreme Court · 1913