Rowe v. Smith
Massachusetts Supreme Judicial Court
Assumpsit on the common money counts. The cause was opened for trial before the chief justice at the last November term, when the evidence to support the action was a receipt of the defendant’s, for fifty dollars by the hands of D. Wild.
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Assumpsit on the common money counts. The cause was opened for trial before the chief justice at the last November term, when the evidence to support the action was a receipt of the defendant’s, for fifty dollars by the hands of D. Wild. It was agreed that, when this money was received, the defendant held the promissory note of the plaintiff for 400 dollars; on which he commenced a suit, after the receipt of the above sum, and recovered judgment for the whole sum appearing to be due on the note; without deduction of the above sum, which was agreed to have been paid on account of the note.…
1Opinion of the CourtParker, C. J.
Our first impression was against this action; but, upon further consideration, we think it can be maintained. It is not like the cases, in which, after judgment suffered, an action is brought to recover back the sum, or a part of it, which was the foundation of the judgment. In those cases a new trial is the only proper * remedy; and when there has been any mistake [ * 308 ] or accident, our statute furnishes relief.
Here the creditor, by his own fault, recovered judgment for his whole debt, when a part of it had been paid. It was his duty to *256have credited the sum paid on the note; and not…
2Cases cited1 opinion
- Loring v. MansfieldMassachusetts Supreme Judicial Court · 1821
3Cited by21 opinions
- Fowler v. ShearerMassachusetts Supreme Judicial Court · 1810
- Le Guen v. GouverneurCourt for the Trial of Impeachments and Correction of Errors · 1798
- Loring v. MansfieldMassachusetts Supreme Judicial Court · 1821
- Greenabaum v. ElliottSupreme Court of Missouri · 1875
- Smith v. WhitingMassachusetts Supreme Judicial Court · 1814
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