Avery v. Russell
Massachusetts Supreme Judicial Court
Contract on a judgment recovered by the plaintiff against the defendant. Writ dated January 24,1877. The defendant filed a declaration in set-off, alleging that the judgment was assigned by the plaintiff to Martin L. Marsh, and that Marsh had previously executed a bond to the defendant, and had committed a breach thereof; and set forth the bond and the breach.
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Contract on a judgment recovered by the plaintiff against the defendant. Writ dated January 24,1877. The defendant filed a declaration in set-off, alleging that the judgment was assigned by the plaintiff to Martin L. Marsh, and that Marsh had previously executed a bond to the defendant, and had committed a breach thereof; and set forth the bond and the breach. At the trial in the Superior Court, without a jury, the plaintiff proved the recovery of the judgment, and that it remained unsatisfied when this action was brought; and the following facts appeared : In December, 1875, Marsh proposed…
1Opinion of the Court
By the Court.
Upon the facts stated in the bill of excep-
tions, it is quite clear that this action is not brought by Marsh, nor for his use or benefit, but is brought in the name of Avery for the use and benefit of Hale; and consequently no demand against Marsh can be set off in this action. Gen. Sts. c. 130, §§ 1, 11. Sheldon v. Kendall, 7 Cush. 217. It is therefore unnecessary to consider other objections to the set-off.
Exceptions overruled.
2Cited by2 opinions
- Kelly v. GreanyMassachusetts Supreme Judicial Court · 1914
- Spitz v. SchwartzMassachusetts District Court, Appellate Division · 1939