Prior v. Jacocks
New York Supreme Court
This was an action brought by the plaintiff as endorsee of a promissory note made by the defendant to one Clark, dated 5th December, 1796, and payable to him or order, in three months. The declaration was in the usual form, and the defendant pleaded ; 1st. Non-assumpsit generally: 2d.
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This was an action brought by the plaintiff as endorsee of a promissory note made by the defendant to one Clark, dated 5th December, 1796, and payable to him or order, in three months. The declaration was in the usual form, and the defendant pleaded ; 1st. Non-assumpsit generally: 2d. Non-assumpsit, as to all the sum contained in the note, except 40 cents, and payment of the 40 cents to Clark before the endorsement to the plaintiff, with a notice subjoined to the last plea, that he would give in evidence, and set off several- large sums of money paid to Clark, and other sums for which Clark-…
1Opinion of the CourtBenson, J.
Admitting the payment of the 40 cents to Clark to have beeh properly pleaded, the defendant could not, under this notice, prove a payment beyond that sum. If the action had been in debt, the plaintiff as to that plea might have entered a nolle prosequi as to the 40 cents, and prayed final judgment for the residue. In the present case, he might have made the like entry, and then prayed interlocutory judgment, and he would have been equally entitled to the residue on an assessment of damages (a)
*210, Besides, the defendant could not, under this notice., set off any demand founded on mutual dealings…
2Cited by1 opinion
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