President of the Bank of Columbia v. Southerland
New York Supreme Court
The declaration was in assumpsit," on a promissory note, dated July 2d, 1820, for $320,02, with interest from date, in-eluding, also, the usual money counts. Pleas, the general issue, and payment, with notice of special matter. Before pleading, on the 9th March, 1824, the defendant paid $60 into Court.
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The declaration was in assumpsit," on a promissory note, dated July 2d, 1820, for $320,02, with interest from date, in-eluding, also, the usual money counts. Pleas, the general issue, and payment, with notice of special matter. Before pleading, on the 9th March, 1824, the defendant paid $60 into Court. The cause was tried at the last Columbia Circuit, before Walworth, Circuit Judge, when the plaintiff sought to recover upon another note, given by one Harris, under the money counts, and evidence was given on both sides touching this claim. The defendant then gave in evidence the following rule…
1Opinion of the Court
Curia.
It is irregular to come in this form. Like all.other questions arising on the trial, which relate to the direction of the Judge, o.r points reserved there, it should be brought here upon a case made. But the practice is well settled, upon the facts before us, that, in a case like this, where money may be properly paid into Court, the sum paid in must be considered as stricken out of the declaration. It is a defence, pro tanto, and unless the plaintiff proves a sum beyond what is paid, there should be a verdict for the defendant. We deny this motion, with costs; but as the form of…
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- Brush v. KohnThe Superior Court of New York City · 1862
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