President, Directors, & Co. of the Mechanics' Bank v. Minthorne

19 Johns. 244

Opinion

Per Curiam.

We have no doubt of our power to set aside the satisfaction entered, as well where there is a clear mistake, as in a case oí fraud. (Wardell v. Eden, 2 Johns. Cases, 121.) Here is a clear and acknowledged mistake of the clerk of this Court. We interfere, in such a case, to do that equity which the party would be entitled to, on application to the Court of Chancery. We, therefore, grant the alternative of the rule moved for; but with thoproviso, that if the defendant shall pay to ‘ the plaintiffs the sum of 525 dollars, in thirty days after service of a copy of the rule, then satisfaction of the judgment shall stand, and no further proceedings be had on the part of the plain tills; and as this is like the case of a mistake of a judge at the circuit, the rule must be without costs.

As to the suggestion made by the defendant’s counsel, that the original note was discounted by the plaintiffs at six per cent.; and that, therefore, they are not entitled to more than six per cent, in this suit; that circumstance does not deprive the .plaintiffs of their right of recovering the legal rate of interest, or seven per cent., against the defendant, who had failed to perform his contract as endorser, or guarantee of the payment of the note.

Rule accordingly.