Clark v. Bush
New York Supreme Court
Assumpsit upon a note given by the defendants to the testator of the plaintiffs, dated November 2d, 1815, for $2000, . . payable October 9th, 1820, with interest, to be paid annualJy.
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Assumpsit upon a note given by the defendants to the testator of the plaintiffs, dated November 2d, 1815, for $2000, . . payable October 9th, 1820, with interest, to be paid annualJy. Bush, one of the defendants, pleaded the general issue, payment and a release ; to which pleas was also subs joined a notice that there would be given in evidence on the trial, a release of the testator of all debts, dues, claims and demands, of what name or nature sever existing against the firm of Bush & M’Cracken, with the necessary and proper averments, &c. ; also that the testator, in his life time,…
1Opinion of the Court
Curia,
per Savage, Ch. J.
(After stating the facts.) It is contended by the counsel for the defendant Bush, 1. That the bond operated by way cf release ; 2. That its operation is not changed by the payment of the penalty; 3. That payment of the penalty was not a discharge of the liability of Barney.
If the condition of the bond was not discharged by payment of the penalty, then the bond must operate by way of release to prevent circuity of action ; for it would be useless for the plaintiffs to recover on the note, if the defendant Bush might turn round and recover the whole amount back on the…
2Cases cited5 opinions
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- United States v. ArnoldU.S. Circuit Court for the District of Rhode Island · 1812
- Cuyler v. CuylerNew York Supreme Court · 1807
- Commonwealth v. ChandlerMassachusetts Supreme Judicial Court · 1814
- Graham v. BickhamSupreme Court of the United States · 1796
3Cited by16 opinions
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- State ex rel. Moore v. SanduskySupreme Court of Missouri · 1870
- Mower v. KipNew York Court of Chancery · 1836
- Wyman v. RobinsonSupreme Judicial Court of Maine · 1882
- Graeter v. DeWolfIndiana Supreme Court · 1887
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