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24 Wend. 256

Bush v. Stevens

New York Supreme Court

Decided July 15, 1840

New York Supreme Court · decided 1840-07-15

Demurrer to declaration in covenant. The first count alleges that Thomas Peele, on the 18th July, 1835, became bound to the plaintiff in a bond, conditioned for the payment of $2529,29, by instalments, specifying the times, with interest; and that the defendants on the same day covenanted with the plaintiff, that in case Peele should not pay the money according to the condition of the bond, the defendants would pay the same on request.

Cited by 1 later decisions — most recently September 1813

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1840-07-15

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¶1By the Court,

Bronson, J.

¶2I. Although this was a collateral undertaking, the seal imports a consideration, and none need be alleged in pleading. This question was fully considered at the last term.

¶3II. The whole of the money mentioned in the condition of the bond was due at the time specified in the breach, and it is enough that the plaintiff has stated how much was due and in arrear, without specifying what portion of it was for principal and what for interest.

¶4*257III. The objection that there should have been a special request only applies to the first count. The covenant in that count is, that if [ *258 ] Peele does not pay the money according *to the condition of the bond, the defendants will pay it on request. The breach alleged is, that Peele did not pay, of which the ■ defendants had notice ; and that although often requested so to do, they have not paid. There should have been a special request.

¶5Judgment for plaintiff on second, third and fourth counts, and for defendants on first count.

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