7 Johns. 463 | N.Y. Sup. Ct. | 1811
This was aboriginal and not a collateral undertaking. The case of William v. Leper, (3 Burr. 1886.) is very much in point. Here the plaintiff, as landlord, had a legal pledge in his custody, and the defendants made the promise in order to discharge the goods of the distress. According to the expression of Mr. Justice Aston, the goods here were the debtor. Whether this promise would not be good even as a collateral undertaking is another question. Lord Eldon says (14 Vesey, 190.) that in cases of a collateral undertaking to pay the debt of another, there is no new consideration moving from the party making the promise to the party to whom it is made ; and the same idea is advanced by the counsel for the plaintiff in the case cited from Burrow. But on this point we give no opinion. In the case of Sears v. Brink & Brink, (3 Johns. Rep. 210.) there was a con- - sideration admitted, and the court say that the consideration was part of the agreement, and ought to have been in writing; but the question did not arise as to what would have been the effect of the writing, if it- had not been
The motion to set aside the nonsuit is granted, with Costs to abide the event of the suit.
Motion granted.