Terry v. Roberts

15 How. Pr. 65

Opinion

Roosevelt, Justice.

The plaintiff Terry stands in the shoes of his assignee, and was subject in equity, at least, to the same set-off by Roberts. Although an actual set-off is not allowable of one judgment against another when the first is appealed from, yet the only effect of the appeal (unless ultimately successful) is to suspend and not to extinguish the set-off.

The proper remedy, therefore, is a stay of proceedings, until the issue of the appeal can be known, on giving the proper security.

Note.—Affirmed on appeal at general term, November, 1867. Mitchell, Clerke and Peabody, Justices.