Thomas v. Kelsey
New York Supreme Court
THIS was an appeal, by both parties, from a judgment entered upon the report of a referee. The following facts were found by the referee: That Eli Chamberlain, on the 16th of February, 1857, made and delivered to Nelson King a bond and mortgage upon lands in Monroe county, conditioned “ to pay all sums of money that King might become liable to pay, by reason of any indorsements he might make at any time afterwards, of the promissory notes of said Chamberlain, or any renewal…
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THIS was an appeal, by both parties, from a judgment entered upon the report of a referee. The following facts were found by the referee: That Eli Chamberlain, on the 16th of February, 1857, made and delivered to Nelson King a bond and mortgage upon lands in Monroe county, conditioned “ to pay all sums of money that King might become liable to pay, by reason of any indorsements he might make at any time afterwards, of the promissory notes of said Chamberlain, or any renewal or renewals thereof; such indorsements not to exceed in the aggregate the sum of $10,000.” This mortgage was assigned to…
1Opinion of the Court
By the Court, Johnson, J.
I think the referee erred in the application of the money collected by the execution issued upon the judgment confessed. It was not a judgment collectable by installments, like that in the case of Mains v.Eaight, (14 Bart. 76,) but was all collectible immediately; and independent of any other fact, the amount collected, whenever received, would apply equally in extinguishment of each and every part of the debt, fixed and established, absolutely, by the confession and the entry of judgment thereon. But as the judgment was obviously given by way of indemnity or security…
2Cases cited3 opinions
- Field v. HollandSupreme Court of the United States · 1810
- Bacon v. BrownCourt of Appeals of Kentucky · 1809
- Hart v. DeweyNew York Court of Chancery · 1830
3Cited by7 opinions
- Hoyt v. JonesWisconsin Supreme Court · 1872
- Sullivan v. Corn Exchange BankAppellate Division of the Supreme Court of the State of New York · 1912
- Summers v. A. Roos & Co.Mississippi Supreme Court · 1869
- City of New York v. Idlewild Beach Co.City of New York Municipal Court · 1943
- Nichols, Shepherd & Co. v. KnowlesU.S. Circuit Court for the District of Minnesota · 1881
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