Dubois v. Dubois

By the Gourt, Marcv, J.

The question presented by this case is as to the right of the defendant to set off the notes mentioned in his notice or the judgments recovered on them. That one or the other may be set off, no reasonable doubt can be entertained. If the exception taken by the plaintiff to the judgments is to be sustained, then the notes are a subsisting demand against the plaintiff; and if the judgments are regular, they constitute a debt that may be set off. The defendant having obtained judgments on the notes, the claim on them must be deemed to have been merged in the judgments, unless the proceedings before the justice in obtaining them were coram non judice.

The plaintiff objected on the trial to the introduction of the judgments as evidence under the notice, because it was not stated in it that the justice before whom they were recovered had jurisdiction. If it should be conceded that the justice had not jurisdiction, then the judgments are void, and the notes are not merged in the judgments, and the amount due on them may be set off against the plaintiff’s claim. But the plaintiff seems principally to rely upon the objection that the judgments having been obtained by proceedings on attachment, and satisfied by the sale of the property seized, were paid, or should be presumed to be thus satisfied. The allegation of payment in fact, and also the presumption of payment, is destroyed by the evidence in the case. The executions, it is true, had the constable’s endorsement of $79 received thereon from the sale of property seized on the attachments ; but it was decided when this case was before the court on a former occasion, (6 Cowen, 494,) that the levy on the property was void. The property levied on was money paid into the surrogate’s court by the defendant to satisfy a decree against him in favor of the present plaintiff. The court regarded the money as the defendant’s own property, and decided if it had been the plaintiff’s it would not have been liable to seizure on the executions. The money levied on was sold by the constable, and purchased by the defendant, and the amount for which it sold was endorsed as received on the executions; but this was not in fact a payment, because the property sold was not the property of the defendant in the executions, and the sale was a void proceeding, because the propery was not subject to seizure by the constable.

It is urged that the return upon the execution is conclusive upon the parties. This position, I apprehend, is not well taken. It is undoubtedly competent for a party to shew, where an execution from a justice’s court comes collaterally in question, that the endorsement on it is not according to the fact, or that it was made under a misapprehension of the law. If the executions had issued from a court of record, and an error had been committed in making endorsements upon them, the court would, beyond all question, allow an amendment, if the interest of third persons would not be affected. On the same principle, the defendant had the right to shew under what circumstances the endorsement on the executions was made, and that they had not in fact been either wholly or in part satisfied. The case of Codwise v. Field, (9 Johns. R. 263,) shews the return on the process by the officer is not conclusive upon the party. In that case, a ca. sa. against the defendant was returned satisfied by the officer, who did not, in fact, receive any money of the defendant. The plaintiff arrested the defendant on a second ca. sa. and the court refused to discharge him, because the first execution, though returned by the officer satisfied, was not in fact satisfied.

The verdict for the plaintiff must be set aside, and a verdict entered for the defendant for $52,04, the balance due him, for which he is entitled to judgment.

Judgment for defendant.