Mercer v. Sayre
New York Supreme Court
THIS was an action of assumpsit. The capias cid respondendum was returnable the 10th of August, 1807. The declaration contained seven counts. The first count was on a promissory note, dated .the 14th February, 1806, for 164 dollars and 44 cents, payable six months after date. The other counts were for goods sold, &c., the usual money counts, and an insimul computasseni. The defendant pleaded non assumpsit, and payment, with notice of a set-off.
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THIS was an action of assumpsit. The capias cid respondendum was returnable the 10th of August, 1807. The declaration contained seven counts. The first count was on a promissory note, dated .the 14th February, 1806, for 164 dollars and 44 cents, payable six months after date. The other counts were for goods sold, &c., the usual money counts, and an insimul computasseni. The defendant pleaded non assumpsit, and payment, with notice of a set-off. The cause was tried at the New- York sittings, the 13th of December, 1809, before Mr. Justice Yates. It is unnecessary to state all the facts proved…
1Per curiam
The evidence offered was material, inasmuch as it went to destroy any presumption that the money was actually received by the defendant at the time the action was brought. The judge, under the circumstances of the case, had a discretion to admit the evidence; and it ought, in sound discretion, to have1 been received. We think, therefore, that the defendants are entitled to a new trial, with costs to abide the event of the suit.
Motion granted.
2Cited by9 opinions
- Burroughs v. StateSupreme Court of Florida · 1880
- Clapp v. WilsonNew York Supreme Court · 1848
- Baze v. ArperSupreme Court of Minnesota · 1861
- Lewis v. RyderNew York Court of Common Pleas · 1861
- Pryne v. WestfallNew York Supreme Court · 1848
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