Phinney v. Earle

9 Johns. 352

• Court: New York Supreme Court
• Decided: October 15, 1812
• Status: Published

Opinion

Per Curiam.

There is no error in the proceedings or judgment. The constable who served the process, did note appear and advocate” for the plaintiff, within the meaning of the .act. (Sess. 31. c. 204.) The statute refers to an appearance, at the trial of the cause. He merely appeared for him to present the note to the justice; and did not appear at the trial. The former judgment against Johnson, while holder of the note in question, was no bar to the plaintiff’s suit, because, under the special agreement to take payment of the note in ashes, the note was not negotiable after it was due, without being subject to that agreement; and it was properly rejected, when offered as a set-off by Johnson. It was returned, therefore, to the plaintiff below, and the defendant, after such return, had confessed that he owed it to the plaintiff. Having objected to its admissibility, as a set-off by Johnson, he cannot now take advantage of that act, (even if erroneous,) to defeat a recov~ry altogether on the nol~e~ Nor does it appear, that the judgment was for more than the face of the note~ with interest, deducting the endorsements.

Judgment affirmed~