Ferguson v. Highley

pronounced the following opinion:

“It is the unanimous opinion of all the Judges present, that although the verdict in this Case is for eighty-seven dollars and thirty-four cents only, yet as the Plaintiff shewed himself to have been originally entitled to his action for one hundred dollars and thirty-four cents, and as this *sum was reduced by evidence given on the trial, of a set-off against the assignor, .of which ..it .does .not appear the Plaintiff had any notice ; this case is different from the case of a payment made to the Plaintiff himself, of which he must be supposed cognizant at the time of bringing his suit; and that the judgment ought not to be arrested : which is ordered to be certified,” &c.

Note (in edition of 1853).—It might be supposed by some, from the terms in which this opinion of the Court is expressed, that the Case turned upon the distinction between the assignee and assignor; but all the Judges were of opinion, that if Akers himself had brought the suit, judgment ought not to have been arrested, because the credit allowed was a set-off, and not a payment, and this, according to several previous decisions.