Conkey v. Hopkins

17 Johns. 113

Opinion

Per Curiam.

This is not a case within the statute requiring a note in writing, to charge one person with the debt or default of another; it is not pretended that the defendant below was bound to the trustees. It is equally clear, that the rule of damages adopted by the justice was correct. It was not necessary for the plaintiff to prove an actual payment of the money by him to the trustees, after the judgment. The contract of indemnity was broken as soon as the plaintiff was sued by the trustees; and the judgment fixes, definitively, the amount which he is compellable to pay. The plaintiff does not stand in the character of a surety, who must actually pay the debt, before he can recover %gainst his principal. We are of opinion, that the judgment of the court below ought to be affirmed.

Judgment affirmed.