Nitchie v. Smith

2 Johns. Cas. 286

• Court: New York Supreme Court
• Decided: April 15, 1801
• Status: Published

Opinion

*Per Curiam.

The defendant ought not to be made liable beyond the assets remaining in her hands, after satisfying the other judgments which she confessed. Not having sufficient to discharge all the judgments, she was obliged to give some a preference. Her election in favor of other creditors, therefore, is not to be charged to any misapplication of the assets ; and she ought not to be made liable for more than what remains, after satisfying those judgments. Her excuse, too, for not pleading, appears sufficient ; but as the judgment is regular, it ought to stand as security for the assets in her hands, beyond the amount of the other judgments, and for other assets quando acciderint; and she must disclose, by affidavit, the state of the assets at the time, and since.

Rule accordingly.(

a)

(a) See Russel v. Ball, infra, vol. 3, p. 92. McKinstry v. Edward, supra, p. 113, and n. (d.)