6 Barb. 532 | N.Y. Sup. Ct. | 1849
There is nothing in the condition of the bond, in terms, binding the defendant Thompson to save the plaintiff harmless from the debt of Nathan R. Crippen, deceased. The condition is to save harmless the plaintiff from a bond, he had, in 1840, given to N. R. Crippen, sen.; the plaintiff giving notice to the defendant Thompson of any proceedings at law or otherwise thereon. The covenant is that Thompson
The question in this case, as we shall see, is whether the plaintiff'can pay the debt of his father, voluntarily and without notice to the defendant Thompson, and then recover upon this bond, against him and his surety ? Buffer, J. in Duffield v. Scott, (3 T. R. 374,) said, “I believe there are cases which say that to entitle a person to recover on a bond of indemnity, he must show he was compelled by law to pay the debt.” But he adds, “ the purpose of giving notice, is not in order to give a
But again; if he assumed the debt after receiving the bond from the defendants, he thereby precluded all examination and defence as to that debt, made himself directly liable for it, and probably discharged all liability in relation to it upon the bond he gave his father; and he prevented the defendants from standing between him and all harm, on the bond. I may add, that the condition of this bond is that the defendant shall have an opportunity to defend; as the obligee is to give him notice
There must be judgment for the defendants, with leave to the plaintiff to amend on payment of the costs of the demurrer.
Judgment for the defendants.