McGuinty v. Herrick
New York Supreme Court
Error from the Clinton common pleas. M’Guinty sued Herrick in a justice’s court, and declared in trespass for taking certain goods and chattels. The defendant pleaded not guilty, and justified under an execution issued on a justice’s judgment in favor of one Monty against M’Guinty, of which judgment the defendant was the assignee.
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Error from the Clinton common pleas. M’Guinty sued Herrick in a justice’s court, and declared in trespass for taking certain goods and chattels. The defendant pleaded not guilty, and justified under an execution issued on a justice’s judgment in favor of one Monty against M’Guinty, of which judgment the defendant was the assignee. The plaintiff replied, that the judgment pleaded by the defendant had been submitted by him in a former suit between the same parlies, and passed upon by a jury, and that the plaintiff had been committed to jail before that time on the same judgment. The justice…
1Opinion of the Court
By the Court,
Savage, Ch. J.
In (he court of common pleas after the testimony was closed, the defendant submitted two points to the court: 1st. That trespass was not. the proper action, but case ; 2d. That the Monty judgment was not a legal subject of set off; that an unsuccessful attempt to set it off was no extinguishment of it; and that the second execution was a justification of the acts complained of, and for which this suit was brought.
The first point seems to me to depend upon the second, for though a regular process from a court having jurisdiction of the subject matter will afford a…
2Cited by27 opinions
- Marks v. . TownsendNew York Court of Appeals · 1885
- Earl v. Camp & StoneNew York Supreme Court · 1837
- Splahn v. GillespieIndiana Supreme Court · 1874
- Hatch v. BentonNew York Supreme Court · 1849
- Barber v. EllingwoodAppellate Division of the Supreme Court of the State of New York · 1910
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