Farmer's & Mechanics' Bank of Lexington v. Cosby

Court of Appeals of Kentucky

Farmer's & Mechanics' Bank of Lexington v. Cosby

27 Ky. 366, 4 J.J. Marsh. 366, 1830 Ky. LEXIS 276

DecidedOctober 6, 1830

StatusPublished

This text of 27 Ky. 366 (Farmer's & Mechanics' Bank of Lexington v. Cosby) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Farmer's & Mechanics' Bank of Lexington v. Cosby, 27 Ky. 366, 4 J.J. Marsh. 366, 1830 Ky. LEXIS 276 (Ky. Ct. App. 1830).

Pincite

Opinion

Chief Justice Robertson,

delivered the opinion of the court.

The bank held a joint and several note on William. B. Long and William H. Cosby, for money loaned to the former. After the note became due, the bank, in consideration of a bill of exchange drawn in its favor by Long, on a mercantile house, in Orleans for the amount due on the note, agreed with Long to extend the credit on the note for four months. After the expiration of this new credit, a judgment was obtained against Cosby on the note, the bill of exchange having been in the mean time, piotested. Cosby enjoined the judgment on the ground, that when the note became due the amount might have been made out of Long, and that indulgence had been given to him by the bank in consideration of the bill of exchange, without his (Cosby’s) privity or consent.

It does not appear, that Cosby requested or assented to the indulgence. And it is proved, thal Long wa* [367]*367able to pay the amount of the note for some time after it was due. '

Wiclcliffh and Wooley, for plaintiffs; Crittenden and Marshall, for defendants.

The circuit court, by its final decree, made the injunction perpetual; and we approve the decree.

The case of Norton, et al. vs. Roberts, et al. (IV Monroe, 491) must be decisive of the merits of this case.

The new contract essentially altered the terms and legal effect of the first, and materially affected the. rights and interests of Cosby. Whatever he was in form, he was in fact, only the surety of Long. He is, therefore, in equity, released.

Wherefore, the decree of the circuit court is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Chief Justice Robertson,

delivered the opinion of the court.

The bank held a joint and several note on William. B. Long and William H. Cosby, for money loaned to the former. After the note became due, the bank, in consideration of a bill of exchange drawn in its favor by Long, on a mercantile house, in Orleans for the amount due on the note, agreed with Long to extend the credit on the note for four months. After the expiration of this new credit, a judgment was obtained against Cosby on the note, the bill of exchange having been in the mean time, piotested. Cosby enjoined the judgment on the ground, that when the note became due the amount might have been made out of Long, and that indulgence had been given to him by the bank in consideration of the bill of exchange, without his (Cosby’s) privity or consent.

It does not appear, that Cosby requested or assented to the indulgence. And it is proved, thal Long wa* [367]*367able to pay the amount of the note for some time after it was due. '

Wiclcliffh and Wooley, for plaintiffs; Crittenden and Marshall, for defendants.

The circuit court, by its final decree, made the injunction perpetual; and we approve the decree.

The case of Norton, et al. vs. Roberts, et al. (IV Monroe, 491) must be decisive of the merits of this case.

The new contract essentially altered the terms and legal effect of the first, and materially affected the. rights and interests of Cosby. Whatever he was in form, he was in fact, only the surety of Long. He is, therefore, in equity, released.

Wherefore, the decree of the circuit court is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

27 Ky. 366, 4 J.J. Marsh. 366, 1830 Ky. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-mechanics-bank-of-lexington-v-cosby-kyctapp-1830.