Ten Eyck v. G & B. Tibbits
New York Supreme Court
This was an action of covenant, and came before the .court on demurrer. • The declaration stated a bond, from one Jonathan Bennington to the defendants, in the penal sum of eight thousand dollars, conditioned for the payment, of four thousand dollars, by instalments of one thousand dollars each, with interest, on the first days of May, 1798, 1799, 1800, and 1801; an assignment of this bond for “ value received,” by an endorsement under the hands and seals .of the defendants,…
Read the full summary
This was an action of covenant, and came before the .court on demurrer. • The declaration stated a bond, from one Jonathan Bennington to the defendants, in the penal sum of eight thousand dollars, conditioned for the payment, of four thousand dollars, by instalments of one thousand dollars each, with interest, on the first days of May, 1798, 1799, 1800, and 1801; an assignment of this bond for “ value received,” by an endorsement under the hands and seals .of the defendants, covenanting with the plaintiffs, “That in case the said Jonathan, the obligor in the said bond, should become…
1Opinion of the CourtThompson, J.
The exceptions taken to tb i declaration are,
1st. That no action could be maintained on the covenant against the defendants, until the last instalment on the bond fell due, which was in May, 1801. The present action was commenced in 1800.
*2d. The insolvency, or inability of Bennington [*435] to pay, is not sufficiently averred.
3d. It does not appear that due dilligence has been used against Bennington, to recover the money.
4th. Ho notice is taken of the payment that fell due the 1st of May, 179,8.
I think all the objections untenable. The-reason urged in support of the first is, that although…
2Cases cited6 opinions
- Cumpston v. McNairNew York Supreme Court · 1828
- Lamourieux v. HewitNew York Supreme Court · 1830
- White v. CaseNew York Supreme Court · 1835
- Curtis v. SmallmanNew York Supreme Court · 1835
- Morris v. WadsworthNew York Supreme Court · 1837
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Schmitz v. . LanghaarNew York Court of Appeals · 1882
- Thomas v. RisleyAppellate Terms of the Supreme Court of New York · 1898