Tom v. Goodrich
New York Supreme Court
This was an action of assumpsit. The declaration contained three counts ; 1st. For money paid, laid out and expended by the plaintiff for the use of O. Barber, O. Goodrich, A. Hosford. A. Hosford, jun. and G. W. Bar-her, in the life-time of the deceased partners. 2d. For money had and received by the same persons to the use of the plaintiff. 3d. For money lent and advanced.
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This was an action of assumpsit. The declaration contained three counts ; 1st. For money paid, laid out and expended by the plaintiff for the use of O. Barber, O. Goodrich, A. Hosford. A. Hosford, jun. and G. W. Bar-her, in the life-time of the deceased partners. 2d. For money had and received by the same persons to the use of the plaintiff. 3d. For money lent and advanced. The defendant pleaded the general issue, and gave notice that he should offer in evidence that, being a citizen of Connecticut¡ and residing in that state, he was discharged by the general assembly of that state in…
1Opinion of the CourtTompxons, J.
In this case two questions arise for our determination. 1. Whether the promise in the declaration ought to have been stated to have been made by those partners only who were living at the time the plaintiff paid the custom-house bond ? 2d. Whether the defendants are at all liable to the plaintiff in this action ?
There can be little doubt that no right of action for money paid, laid out, and expended, arises in favour of a surety, against the principal, until the former has actually paid the debt, or his body has been taken in execution upon a judgment therefor. (Chilton v. Whiffin and…
2Cases cited1 opinion
- Walden v. SherburneNew York Supreme Court · 1818
3Cited by3 opinions
- Hosack's Executors v. RogersNew York Supreme Court · 1840
- Edmondson v. BarrellU.S. Circuit Court for the District of District of Columbia · 1821
- Gourdin v. TheusSupreme Court of South Carolina · 1808