Smith v. Lockwood — 10 Johns. 366

Majority

p. 370

Smith, administrator of Banks, against Lockwood

ALBANY,

August, 1813.

Headnote

Where a suit is brought by an executor bp administrator, before a justice's court, and the defendant pleads a set-off, and á balance is found in his favour, the judgment for the defendant is absolute and peremptory against the plaintiff, who Recomes thereby per« sonally -charged for the judgment, ¿le iipnis tirqprfis*

IN ERROR, on certiorari, from a justice’s court. Smith, as administrator, &c. sued Lockwood, before the justice, in assumpsit, on a promissory note given’to the testator, for 15 dollars; and declared upon it as upon a lost' note. The defendant pleaded non assumpsit and a set-off. The cause was tried before the justice. It appeared that the note was negotiable, and that the plaintiff gave no evidence of the loss of tiré note, the making of which was admitted, nor did he produce it. The justice gave judgment for the defendant, for ten dollars, the amount of his set-off, proved against the intestate. ■;'

The decision of the justice was correct, notwithstanding a judgment for/ten dollars, with costs, was rendered absolutely against the plaintiff, by which he may be personally

p. 371

charged On examining the act of 1808, for the recovery of debts to the value of 25 dollars, (sess. 3. c. 204.) it appears that jurisdiction is expressly given, where an administrator or executor is plaintiff; and in all cases cognisable under the act the defendant is entitled to his set-off; and the judgment, when for the defendant, is to be peremptory. The hardship to which the plaintiff, as administrator, may be exposed by being made personally liable for the judgment, results from the provisions of the act, and Is not to be avoided when an administrator or executor sues before a justice.

The plaintiff sued below on the note, and not on the pre-existing debt. We are also to conclude from the return, that the note was negotiable, and it was, then, equivalent to a discharge of the debt, so that the plaintiff could not resort to it, without producing anti cancelling the note at the trial, or showing it lost; and he did neither. (Holmes & Drake v. D’Camp, 1 Johns. Rep. 34 . 3 Johns. Rep. 206 . Kearslake v. Morgan, 5 Term Rep. 513.)

Judgment affirmed.