Jones v. Conde

6 Johns. Ch. 77

• Court: New York Court of Chancery
• Decided: April 1, 1822
• Status: Published

Opinion

The Chancellor.

The 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.)

Motion denied, with costs.