Whitney v. Spencer
New York Supreme Court
On error from the Common Pleas of Delaware. In that Court, the plaintiff declared against the defendants in debt, for $100, upon a bond dated July 27th, 1818, with condition, aftef reciting that a judgment had, on the day of the date, been rendered in favor of the plaintiff, against one Stockton, for $50, with costs, that if Stockton should well and truly pay the judgment at the expiration of 3 months from the date of the bond, or surrender Stockton’s body in execution…
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On error from the Common Pleas of Delaware. In that Court, the plaintiff declared against the defendants in debt, for $100, upon a bond dated July 27th, 1818, with condition, aftef reciting that a judgment had, on the day of the date, been rendered in favor of the plaintiff, against one Stockton, for $50, with costs, that if Stockton should well and truly pay the judgment at the expiration of 3 months from the date of the bond, or surrender Stockton’s body in execution within 30 days thereafter, then the bond to be void, &c. The declaration then averred, that Stockton did not pay the judgment…
1Opinion of the Court
[Woodworth, J.
But do not the terms of the bond imply, that the obhgee should sue out his execution, so as to *41enable the defendants to surrender ? If this be so, your declaration is bad, within the authorities cited. The obligors were prevented in their performance, by the omission of the obligee.]
Monson, read the case of Mounsey v. Drake, and insisted that the same objection existed in that case. The obligors might have paid the debt; and they can no more excuse themselves here, for the want of an execution, than in that case.
S. Sherwood, contra, said this case could not be distinguished from…
2Cases cited1 opinion
- Tuttle v. KipNew York Supreme Court · 1821
3Cited by4 opinions
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- Ordway v. FarrowSupreme Court of Vermont · 1906
- United States v. StaffordU.S. Circuit Court for the District of Northern New York · 1871
- Pindar v. UptonSupreme Court of New Hampshire · 1860