Sherman v. Crosby

11 Johns. 70

• Court: New York Supreme Court
• Decided: January 15, 1814
• Status: Published

Opinion

Per Curiam.

The only question made at the trial was, whether the receipt was competent evidence of the payment by T. Crosby. It was proved to have been signed by Bennet, and as the plaintiff had instructed the defendant, T. Crosby, to settle the suit of Bennet against the plaintiff, and pay the demand and costs for him, the receipt of Bennet was prima facie evidence of the demand and payment, and it was not requisite for the defendant to make out, in the first instance, the legality of Bennetts demand, or highér evidence of the payment. The plaintiff had given the defendant a. discretion to adjust the demand, and to pay the dues and costs, and the adjustment and payment of the sum demanded was sufficient for the defendant; and it lay with the plaintiff to show some fraud in the adjustment, or some abuse of the discretion. There was no other point raised at the trial, or arising on the case, for it is too late for the plaintiff now to object to the set-off, on the ground that it was setting off the separate debt of one of the defendants against the joint debt of "both the defendants. That objection might have been good, if made at the trial. (Montagu on Set-Off, p. 23. Butter, J. in Fletcher v. Dyche, 2 Term Rep. 32.) It is now inadmissible, as the defendants are thereby deprived of the privilege of showing that the payment by T. Crosby was in fact made by him and his co-defendant, as partners, and out of the partnership funds.

The motion to set'iaside the nonsuit is denied.

Rule refused.