Smith v. Lockwood

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 *371charged 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.