Clark v. Kay

• Citation: 26 Ga. 403
• Court: Georgia Supreme Court
• Decision Date: 31 August 1858
• Parties: Clark, Austin & Smith, plaintiffs in error. vs. Wm. Kay,defendant in error.

26 Ga. 403

Clark, Austin & Smith, plaintiffs in error. vs. Wm. Kay, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1858.

Debt, in Fulton Superior Court. Tried before Judge Bull, April Term, 1858.

The facts of this case are stated in the opinion delivered by the Court.

Thomas L. Cooper, for plaintiffs in error.

A. W. Hammond & Son, contra.

By the Court.—Benning, J., delivering the opinion.

The plaintiffs in error, sued the defendant in error, upon a bond of which the following is a copy:

"Georgia, Fulton county.

I, William Kay, of the county and State aforesaid, for and in consideration of my liability unto Messrs. Clark, Austin & Smith, of the city of New York, upon the five original notes of which, the above and foregoing are true copies, " (the copies being, one, for $500, payable at seven months after date; one, for $550.50, payable at four months after date; one, for $420.50, payable eight months after date; one, for $550.50, payable at five months after date; one, for $508.75, payable at three months after date;) "as well as, in consideration of the withdrawal of their suit now pending against me, in the Superior Court of said county, upon the two first mentioned notes above, and in consideration of their forbearance to sue the three last mentioned notes above, and, also, in consideration of the sum of ten dollars to me in hand paid, by the said Clark, Austin & Smith, the receipt whereof is hereby acknowledged—do, by these presents, agree with, and promise unto, the said Clark, Austin & Smith, to pay the original of the said foregoing notes, in the following manner; to wit, I promise to pay unto them, or their agent in Atlanta, the sum of two hundred and fifty dollars, on each and every month, beginning with the present month of April, eighteen hundred and fifty-five, and continuing so to pay the sum of two hundred and fifty dollars, monthly, until all of said notes are paid off and discharged in full; said payments to be made on said notes in the order of their several maturities; that is to say, the first notes due, to be first paid, and said payments to be made at some time during each and every month, and on or before the last day of every month; and I do hereby promise unto the said Clark, Austin & Smith, that, in case I should not make the monthly payments on said notes of two hundred and fifty dollars promptly andpunctually, on or before the last day of each month, according to the true intent and meaning of these presents, then, and in that case, I hereby promise to pay unto the said Clark, Austin & Smith the sum of two hundred and...