Jones v. Conde

Decided April 1, 1822

New York Court of Chancery · decided 1822-04-01

PETITION of the defendants, stating, that only one year’s interest is in arrear, and due and unpaid, on a bond and mortgage given to the plaintiffs, and that the plaintiffs, in January last, sued the bond at law, and filed a bill to foreclose the mortgage, in this Court; and praying, that the bill be dismissed, with costs, or that the suit in this Court be stayed until the plaintiffs shall have discontinued their suit at law, or pressed the same to the utmost extent, and…

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Decided 1822-04-01

How this case has been cited

Cited by 11 later decisions — most recently December 2001

1 district · 9 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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The Chancellor.

¶1The rule is settled, that a mortgagee may sue, at the same time, at law, upon his bond, and in this Court upon his mortgage. The case of a mortgagee forms an exception to the general rule, that a party shall not be allowed to sue at law, and here, at the same time, for the same debt. The one remedy is in rem. and the other in personam ; and the general rule to which this case is an exception, applies only to cases where the demand at law and in equity are equally personal, and not where the cumulative remedy is in personam, while the other remedy is upon the pledge. (Booth v. Booth, 2 Atk. 343. Schoole v. Sall, 1 Sch. & Lef. 176 Lord Kenyon, in Smart v. Wolf 3 Term Rep. 342. Boyd v. Heinzelman, 1 Vesey & Beam. 381. Jackson v. Hull, 10 Johns. Rep. 481. Lord Erskine, in Perry v. Barker, 13 Vesey, 205. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330.)

¶2Motion denied, with costs.