Bank of Auburn v. Throop

Headnote

Where the ™feory° anot°, J^gmeni feta-yj who hod pre-the- maker, af-terwards r.tco-Ver a judg- and’ ej'e-[¿agments bcdh ^¡T^Ltecurtott fie judg-mentm favour of the endorser, vered; the tionofthe yoid-the second suit) sheriff,dout 'of S?smKf”S sale of the defendant’s pro-jJÍ^Jñd^satisiy the second execution in fa-vour of the holders of the note.

THE defendant, T., was the maker of a promissory note endorsed by W. & A., plaintiffs in the second suit, which was discounted at the Bank of Auburn, for the benefit of T. The note being protested for non-payment, the Bunk of Auburn commenced a suit against T., and recovered a judgment against him on the 27th of October, and a fi. fa. was issued on the same day. T., for the security and indemni- tv of the endorsers, previously confessed a judgment m J 31 J jo their favour, which was entered up on the 14th of August, and a fi.fa. issued thereon, on the 10th of October; both executions were delivered to the sheriff of Cayuga. The Bank of Auburn, plaintiffs in the first suit, having, as was stated in the affidavits, reason to.apprehend, that the money raised on the execution in favour of W. & A., was not in- 1 m tended to be applied to the payment of the judgment in fa-vour of the bank, now applied to the Court for a rule directing the sheriff of C., out of the proceeds of the sale of thereal and personal property of the defendant, on the ex■ecutions in his hands, first to pay and satisfy the execution in favour of the bank. .

Foot and Cady, in support of the motion. They cited Smith v. Page, 15 Johns. Rep. 395 . Lansing v. Orcuit, 07 1 ° 16 Johns. Rep. 4 . Lambert v. Paulding, ante, 371. Wil T. , ^ ’ hams v. Rogers, 5 Johns. Rep. 163 ,