Kirkpatrick v. Wensel

Opinion delivered Dec. 14, 1874, by

Pershing, P. J.

The defendant who is sued as the endorser of a negotiable note, sets forth in his affidavit of defence, that he “paid at two several times upon the said note the sum of one hundred dollars, and upon the payment of this sum the plaintiff agreed that the said note should be cancelled and given up to defendant,” and that the plaintiff, though since requested by the defendant has “ ever since refused to give up said note, according to contract.” The plaintiff is willing to admit the payment of the one hundred dollars stated in the affidavit, but…