Fayerweather v. Willet , 1 Edm. Sel. Cas. 364 ( 1846 )


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  • The Circuit Judge:

    I see no reason for changing the view which I took of this case on the trial. The bond in suit was one of indemnity only—“indemnify and save harmless the plaintiff from any loss or damage to which he shall be subjected by reason of any claim or demand which shall hereafter be set up against the estate of Stephen Price, deceased, which shall be entitled to a preference over the judgment of Bancker against Price.”

    It is now well established that to constitute a breach of such a bond there must be actual loss and damage—not a mere liability to loss. (Aberdeen v. Blackman, 6 Hill, 324.)

    Now, in this case, it is very evident that the money in the North Eiver Bank belonged to Price individually, and was assets in the plaintiff’s hands, unexpended at the time this suit was brought. It is no answer for the plaintiff to say that Clute had a superior claim to it on his judgment. His having such a claim was no “loss or damage” to the plaintiff, nor could it be until plaintiff had actually paid out the money on such claim. That he never did, but he seeks to recover on the ground that he may some time or other be called upon to pay it over to Clute. If the bond had been to indemnify him against any liability, etc., there might be force in the suggestion, but that is not the bond in this suit. He is to be indemnified against loss or damage,” and as he did not show any loss or damage, but only an apprehension that perchance he might lose, or might be damnified, he could not recover.

    There must be judgment for defendant.

Document Info

Citation Numbers: 1 Edm. Sel. Cas. 364

Filed Date: 11/15/1846

Precedential Status: Precedential

Modified Date: 2/5/2022