Willard v. Fox
New York Supreme Court
IN ERROR, on certiorari, to a Justice’s Court. Fox declared against Willard, before the Justice, on an account. The defendant pleaded the general issue, and stated, that he should, on the trial, set off an account and judgment.
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IN ERROR, on certiorari, to a Justice’s Court. Fox declared against Willard, before the Justice, on an account. The defendant pleaded the general issue, and stated, that he should, on the trial, set off an account and judgment. At the trial, the defendant admitted, that there was due to the plaintiff, five dollars and ninety cents, on the balance of their accounts; and then offered, as a set- . . . , off, a judgment in his favour against the plaintiff, for 16 dollars and 54 cents. The plaintiff objected to the set-off, on the ground, that the judgment had been removed into the Supreme Court…
1Opinion of the CourtWoodworth, J.
The defendant in error was not entitled to execution on the judgment, without giving satisfactory security to restore the debt or damages, in case the judgment should be reversed. (1 N. R. L. 396.) If the defendant in error can obtain the benefit of his judgment by set-off, it is equivalent to payment; and it would be an evasion of the spirit of this section of the statute ; for it would be permitting him to do that indirectly, which he cannot do directly. It is true, that a new action may be brought on a judgment, notwithstanding a writ of error; for, although the writ of error be a…
2Cited by2 opinions
- State v. CantonSupreme Court of Missouri · 1868
- Gemmell v. HuebenMissouri Court of Appeals · 1897