Majority
p. 240Ingalls against Lord.
Headnote
A chose in be taken in execution; as a promissory note. a comtaMe received a pro?sSS01ícuríty, and afterwards sold it, the value^unless transaction was held illegal. The measure of damages, in trover, for a note, is ■íto VWVt-Yl TV» O 1 that be reduced by shewing payment,- or the insolvency of the maker, or some facts to invalidate the note.A party may reverse his own judgment for error ;
'As where he. recovers less damages than should have been allowed by a verdict.
Certiorari to a Justice’s Court. In trover, by Ingalls against Lord, in the Court below, it appeared that Lord, as constable, and under an execution against Ingalls, levied up- . ° ° 1 on and sold a promissory note against one Brown, on which was due to Ingalls about $57. The note was received from Ingalls by the defendant, in exchange for IngalPs watch and some clothes, which the defendant had before levied on under qle same execution. Verdict for the plaintiff, for $5-., x 3 v
N. Rathbun, for the plaintiff in error.
C. E. Clark, contra.
The note being a chose in action, could not be levied on nor sold. (Denton v. Livingston, 9 John. 100 .) If
p. 241
levied upon, as the goods of Ingalls, the act was illegal and void. And if the note was taken as security for money advanced; or agreed to be advanced, the transaction was also illegal. This Court has viewed, with great jealousy, the conduct of officers holding executions against defendants. (Reed v. Pruyn & Staats, 7 John. 426 , 30. Sherman v. Boyce, 15 id. 443, 7 .) The value of the note was the amount due thereon ; as no evidence was given to reduce that value, either by shewing payment, or the insolvency of the maker, or any facts to invalidate the nóte. It has frequently been decided, that a party may reverse his own judgment, for errors
Judgment reversed.