Court of Common Pleas.-Thompson v. Hooker and Gillies. some rule should be settled, and I am inclined to think that when a note is not made payable at any particular place, and the maker has a known and permanent residence within the state, the holder is bound to make a demand at such residence, in order to charge the endorser." On this subject see also 2 Caine 125; 3 Kent's Com. 96; Anth. Nisi Prius 1; Gillipsie v. Hannahan, 4 McCord 506. Court of Common Pleas. CITY OF NEW YORK. Before the Honorable M. ULSHOEFFER, First WILLIAM R. THOMPSON, et al. v. THOMAS M. In the latter case, the court say, "it may seem unreasonable that a demand should be dispensed with when the maker had only removed across an imaginary line separating PROMISSORY NOTE-SET OFF ASSIGNMENT FOR two countries, but that it would be equally unreasonable that the holder should be com THE BENEFIT OF CREDITORS. pelled to follow him to St. Petersburgh to In an action against the maker and endorsers of a inake the demand." A removal from one state to another is regarded as a removal to a foreign country. 9 Wheaton 598. note under the statute, they cannot set off the same claim without proof that they are jointly interested in it--but if one defendant establishes a set off to the amount of the plaintiff's claim, all the defendants are entitled to judgment. The payee of a note is presumptively the owner of it, and may set it off in a suit against him without proof that he held it before the suit was commenced. A voluntary assignment, for the benefit of creditors, is founded upon a sufficient consideration to prevent a set off of a claim held by a debtor of the assignor, though it was not due at the time of the assign ment. THIS was an action of assumpsit against the maker and endorser of a promissory note, for $487.60, dated January 11, 1845, payable four months after date, drawn by Hooker and endorsed by Gillies. All these authorities relate to cases where the maker was a resident of the state when and where the note was drawn, but I see no reason why the same rule should not govern, when the maker is a nonresident, and temporarily here when he executes the note. And so the rule is held to be in Judge Story's new work on promissory notes, pages 282 and 236. He says, "it seems also that if the maker of a promissory note resides, and has his domicil in one state, and actually dates and makes and delivers a promissory note in another state, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable inquiries, be found within the state, and has no known place of business there." Vide also 10 Martin's Rep. 643, where the same doctrine is held in the state of Louisiana, and Chitty on Bills 180, 181. I think no demand of payment, from the ma-inally $7,200, and debts to be paid $40,000. ker was necessary, and the nonsuit must be set aside, and a new trial granted with costs to abide the result. New trial granted. The plaintiff's proved the execution of the note, and that on the 19th of February, 1845, the plaintiffs made an assignment of this note with all their copartnership property, for the benefit of their creditors. The amount of property assigned was nom The defendants offered in evidence a note drawn by plaintiffs in favor of Gillies for $639. 40, dated 14th November, 1844, payable four months after date, and claimed to set off the same against the note on which the action was brought. This was objected to on the BROUGHAM AND CAMPBELL.-In reply to an part of the plaintiffs, on the ground that the observation from Lord Campbell in the House note was no legal set off. A verdict was taken by consent for the plaintiffs, for $498, of Lords, on the subject of railways, Brougham and 6 cents costs subject to the opinion of the said he assured the house that in the remarks court. The case was tried before the Honorhe had made, he had not been actuated by in-able M. Ulshoeffer, first judge, on the 4th terested motives, because he had no stock. September last. Lord Campbell observed that he had been better pleased had he been informed that the noble ex-Chancellor had no choler. The case now came on for argument. Brady and Maurice, for the defendants, relied on the following points: Court of Common Pleas.-Thompson v. Hooker and Gillies. I. The note proved by the defendant was an available set off, because, 1. This suit is to be regarded as brought for the benefit of the plaintiffs. 2. The demand is against the plaintiffs. 3. The assignment only carried the right of assignees, and the account is to be stated between the parties as if the assignment had never been made. 4. An assignee to pay debts is not free from the equities existing between assignor and creditor. E. L. Fancher, for the plaintiffs. I. The note sued upon in the name of the plaintiffs, was transferred by them at the making of this assignment; and the note therefore came into the hands of the assignee before maturity, for the benefit of plaintiffs' creditors. All the creditors being owners of the note before maturity, stand in the same position as if the plaintiffs had transferred it before maturity, to one creditor. Consequently, the defendants' set off cannot be allowed. Hoxtum v. Bishop, 3 Wend. 13, 2 R. S. 354, § 18. II. Besides, there is no evidence that the defendants did not purchase the note claimed to be set off, after it became due; and such a note was never the subject of set off. Johnson v. Bloodgood, 1 J. C. 51. 2 C. C. E. 302. Indeed the note bears on its face, or rather its back, evidence that it was not held by the defendants from the time it was made, but that it had been negotiated and passed away. It was therefore incumbent on them to show where they bought it, which they have not done. and if there was, I do not see how both defendants can avail themselves of the same claim as a set off. They are not sued as joint debtors, and their respective rights and liabil ities are to be settled between the plaintiffs and them individually, and not in any joint relation. They cannot both own the whole note, and both set it off for the whole debt. It belongs in whole or in part, to one or the other, and the part which each or either of them owns, can be set off against their individual liability. The note being payable to Gillies, the presumption is that he has been the holder since it was given, unless there is evidence to show that he has parted with it; he is the only person who can set it off without evidence to show himself to have been the possessor of it when the suit was commenced. 2 R. S. 278, sec. 32, sub. 4. If he is entitled to the set off, then by the statute, both defendants are entitled to judgment. 2 R. S., N. Ed. 275. The only question therefore, is, whether Gillies can set off this note against the assignee, inasmuch as it became due after the assignment by the plaintiffs. The defendant Gillies is undoubtedly entitled to make this set off unless the assignment to Fancher was such a transfer of the plaintiffs' interest as to prevent it. I do not think in an action at law that we can inquire whether the plaintiffs have assigned more property than is sufficient to pay the debts for the payment of which the assignment was made. It is a matter of no moment in this suit, whether such assigned property exceeds the debts or not. This question must be decided simply upon the validity of the assignment as divesting the title of the assignors. Nor do I think the rules, allowing a set off in cases of notes transferred for precedent debts, referred to by the counsel for the defendants, INGRAHAM, J.-This action is brought in as applicable to this case. Those are cases the names of the plaintiffs for their assignee, where a set off existed at the time of the to whom they assigned this note with other transfer, and on negotiable paper, such set off property, for the benefit of certain creditors, can only be defeated by showing a valuable on the 19th February, 1845. The defendant consideration for the transfer. But in this relies upon a set off of a note drawn by plain-case no such right of set off existed when the tiffs to Gillies one of the defendants, dated the assignment was made. The note held by the 14th November, 1844, and due 17th March, defendant was not then due. The plaintiffs 1815. The action is against the maker and could have maintained an action upon the endorser of the note under the statute, allow-note held by them, and the defendants could ing all the parties to a note to be sued together. III. The statute expressly debars the off set. 2 R. S. 354, § 18, sub. 7, 10. I do not see how Hooker can derive any benefit from this note as a set off. There is no evidence showing that he had any interest in the note at the commencement of the suit, not have set off their note. This is the true rule by which the right of set off in a case like this, is to be ascertained, viz. whether there has been a valid transfer of the plaintiffs' claim, and whether at the time of such transfer, the defendants had a right of set off. Court of Common Pleas.-Southworth et al. Comm'r &c. v. Straight. If they had not then, it is immaterial whether the consideration of the transfer was a precedent debt or money or goods then paid for it. The application of such a rule to the present case would exclude the set off as the note proposed to be set off was not due when the assignment was made by the plaintiffs. ap But it is contended that this assignment being made to pay creditors did not alter the rights of the parties, and that the defendants may set off demands coming due after the assignment. The assignment is made for the benefit of certain creditors. They are entitled to the proceeds of the property assigned. The assignors cannot interfere with or receive any part of it, and the assignment has put the assigned property beyond their control. I do not see that any different rule is to be plied, because the property is conveyed to one for the benefit of all the creditors, than would apply if it had been conveyed to one creditor for his individual claim. In either case the assignment would be valid, and I think no set off can be made, unless for a debt which was due at the time of the assignment. 2 J. R. 274; 1 Hill, 222. Such appears to have been the view of the Supreme Court in Hoxtum v. Bishop, 3 Wend. 13. There the bank made a voluntary assignment, which the chief justice considered valid, and he also held that the assignees or receivers acted not for the assignor, but as trustees for the creditors. In Spencer v. Barker, 5 Hill 568, the point is expressly decided that an assignment for the benefit of creditors is bona fide, and that such precedent debts form a good consideration so as to prevent a set off of a claim subsequently acquired. See also Hill 559, and 1 Denio 195. There may be some apparent hardship in this case, because the claim of the defendant Gillies, is larger than the amount due on this note, but it in reality does not differ from cases of daily occurrence, where a party in failing circumstances transfers to individual creditors, notes of persons having claims against him not due, and who thereby are deprived of the right to set them off. If the plaintiffs had held the note and prosecuted it as soon as it became due, the defendants would have been compelled to pay the judgment, notwithstanding the note of the plaintiffs held by them which became due subsequently. That would have been quite as hard a case as the present. My conclusion is that the plaintiffs are entitled to recover the amount of the verdict against both defendants. ONTARIO, N. Y. Before the Honorable E. F. SMITH, First Judge. SOUTHWORTH, et al, Comm'r. of Highways of the town of Manchester v. STRAIGHT. PLEADING-JURISDICTION-COSTS. In an action by the Commissioners of Highways, to recover the penalty given by statute for obstructing an highway, commenced in a justice's court, where the defendant interposes a plea of no highway, and issue is taken upon that plea, such a plea involves a question of title to land, which, upon a compliance by the defendant with the directions of the statute, ousts the justice of jurisdiction. In such case, when an action is subsequently com menced in the Common Pleas for the same cause of action, and the same issue is joined in that court, and the plaintiff obtains a verdict for $5 debt, the plaintiff under the statute is entitled to full costs, notwithstanding the recovery is less than $50 THE facts of this case sufficiently appear in the adjudication. SMITH, First Judge. This was an action of debt brought by the plaintiffs, and originally commenced in a justice's court, to recover the penalty of $5 given by statute for obstructing an highway. The defendant pleaded before the justice, that the locus in quo which was claimed as an highway, was not and never had been an highway; but that it still was and is the freehold of the defendant Issue was taken upon this plea. The justice decided that the issue thus joined involved a question of title, over which he had not jurisdiction. The requisite proceedings were thereupon had, as required by statute to oust the justice of jurisdiction. A new suit under the provisions of the statute was then commenced in this court, and the same issue joined here as was joined in the justice's court. On the trial, the main question raised and litigated was, whether the place obstructed by the defendant was an highway. The jury under the charge of the court found that it was, and rendered a verdict in favor of the plaintiffs for $5 debt. The plaintiffs now inove for full costs; which motion is resisted on the part of the defendant on the ground that the recovery is less than $50; and he moves on the same ground for full costs against the plaintiffs. The defendant relies on the authority of Parker v. Van Houghton, 7 Wend. R. 176, in opposition to plaintiff's motion. Court of Common Pleas.-Southworth et al. Comm'r &c. v Straight. In the case of Parker v. Van Houghton, not be tried by a justice. The plaintiff is above cited, it was held that a plea of title to necessarily driven into this court for redress. the soil was no bar to an action by the Com- The learned counsel for the defendant who missioners of Highways, to recover a penalty argued this motion, seems to have overlooked for an obstruction of an highway; and that the fact, that it was because the plea in Parunder such a plea, the plaintiffs were not en- ker v. Van Houghton raised an immaterial titled to costs. We think that case distin- issue, the court held that case not within the guishable from the one at bar. The plea of statute of 1824, which declared that in any the defendant in that case was a simple plea action where the title to land shall in anywise of title to the soil. As the owner of the fee come in question, and a plea of title was into land over which an highway passes, always terposed, the plaintiff might commence his has title to the soil subject to the easement in- suit in the Common Pleas, and if he recovered deed, yet his title to the soil is not inconsist- any damages in such suit, the defendant shall ent with the right claimed by the public. For be liable to pay the plaintiff double costs; this reason, such a plea constitutes no answer and that for the obvious reason, that under to, nor is it inconsistent with the claims of such issue, the justice, in the determination the public; and therefore would have been of the legal right of the parties litigant in that bad on demurrer. But in the case at bar, the action need not have passed upon the quesplea is different. It is that the premises tion of the title to the land. Neither the claimed as an highway, was not and never principles of that case, nor the reason for the has been an highway. This plea distinctly rule there adopted, have any application to the puts in issue the fact of the existence of the case at bar; for this plea puts in issue the highway. If true, it would have constituted existence of this highway-it raises a matea complete bar to this action. As no title is rial issue. For if it was not in fact an highcompletely good unless the right of possession way, there could have been no obstruction to be joined with the right of property, although which the penalty given by the statute could the defendant might have owned the soil over attach. The justice, under such a plea as which this road passes, the plea of no high- this, must necessarily have passed upon the way puts in issue his absolute right, and in- question of title to land. volves the question of his complete title, and This plea brings this case both within the whether it is not qualified by a right to an words and spirit of the statute, withdrawing easement in the public. It is a well settled the investigation of titles to land from a comrule, that what is alleged on one side in the mon magistrate. Whiting v. Dudley, 19 pleadings, and not denied on the other, is ad- Wend. R. 376. The statute having under mitted. In this action, the plaintiffs in legal such an issue as this made a resort to this or parlance say, the premises described are a some other court of record compulsory on the public highway-the defendant has obstruct- plaintiff, in order to obtain legal redress, having ed this highway. Suppose the defendant had done so, it would have been contrary to all simply said, I own the soil over which it runs. the analogies of the law to have compelled him He would not have denied the allegation that to do so at his own expense, or to have made this was an highway. That fact would have him pay the costs of his delinquent adversary. stood admitted by the plea. Under such a To guard against such injustice as this, the plea, no question of title would have been in- legislature have provided in another section volved in the issue. The fact plead would of the statute applicable to courts of record, not have constituted a bar. The issue would that the plaintiff shall recover costs in all achave been an immaterial one, and under it the tions in which the title to lands or tenements, justice would not have been ousted of juris- or a right of way, or a right by prescription diction. No resort to this court would have or otherwise, to any easement in any lands, been necessary; hence, in such a case, there or to overflow the same, or to do any inwould have been no solid reason why the jury thereto, shall have been put in issue by plaintiff should recover costs. Such was the the pleadings, or shall have come in quescase of Parker v. Van Houghton. But the tion on the trial of the cause. 2 R. S. 2d plea of NO HIGHWAY denies the entire title of ed. 509, § 2, Sub. 2. The manifest intent of the public. It also involves the question of this section was to make provision by which the absolute and unqualified title of the de-a plaintiff should recover full costs of suit, in fendant. This issue involves a question of all that class of cases where a justice's court title to land which, under the statute, could would not have jurisdiction, on the ground Court of Common Pleas-Paine v. Hathaway. that the title to land would come in question, on the defendant on the 18th of the same and where the plaintiff could not obtain legal month. The narr. in the court below was asredress except in a court of record. The sumpsit. The defendant plead the general whole question litigated on the trial of this cause, was the fact of the existence of this highway. As there was no record of it, this court were called upon to decide the legal question, as to what in point of law, constitutes a dedication of land to the use of the public, as the fact of its being a highway depended solely upon the fact of such dedication and use by the public for a period of upwards of twenty-five years. This was just such a question as under the statute a justice should never try, and as could only be tried in a court of record. As a right of way in land under this issue did come in question, the plaintiff under the statute is entitled to full costs, and the motion for costs on the part of the defendant is denied. issue and two special pleas of set off, and gave a general notice of set off. The first special plea stated, that at the August term of the Court of Common Pleas of Ontario county, he recovered a judgment against the plaintiff for $20, which he would set off. The second special plea stated, that on the 16th day of August, 1843, a judgment was rendered in the Court of Common Pleas of Ontario county, in favor of the defendant, against the plaintiff, for $20 costs in maintaining a writ of certiorari on a judgment rendered in favor of plaintiff, against the defendant, before Solomon C. White, Esquire, a Justice of said county, which he would set off. The plaintiff replied to the special pleas, that at the time of the commencement of the suit, no judgment existed in the Court of Common Pleas against the defendant. The proof was, that the certiorari named in the plea was ar PAYNE plaintiff in error v. HATHAWAY de- gued before the Common Pleas on the 16th fendant in error. day of August, 1843, and a rule for reversal with costs entered in the minutes of the court. JUDGMENT—COSTS-SET OFF SECURITY FOR A record upon the said judgment was filed, COSTS. When a judgment of this court is pronounced in a cause upon certiorari from a justice's court, and a rule for reversal with costs entered in the minutes of the court, as between the parties, this is a judgment rendered so that the amount of costs of reversal may be set off in another suit between the same parties, commenced after the entry of such rule, although no record is filed or docketed before the com mencement of the suit. Under the statute, the signing and filing of the record of a judgment is not essential to the validity of the judgment, except as the foundation for proceeding upon the judgment; nor is the docket essential, except for the purpose of creating a lien upon land, and securing a priority of lien as against purchasers and encumbrancers-as between the parties there may be a valid judgment antecedent to the signing or filing of the record or the docket of a judgment Where a justice's judgment is reversed with costs, and a rule entered to that effect, the law imposes an obligation to pay, and implies a contract to do so; upon which implied undertaking, an action can be sustained for the recovery thereof. A justice has no power to compel a plaintiff to file security for costs under the statute, although the plaintiff is an infant. THIS was an action of assumpsit commenced by defendant in error against the plaintiff in error, in a justice's court, by summons issued on the 17th day of August, 1843, returnable on the 25th day of August, 1843, and served and judgment docketed for $20 costs on 24th day of August, 1843. The justice disallowed the set off. A motion was also made before the justice that the plaintiff be compelled to file security for costs, under 2 R. S. p. 620, which the justice refused. E. F. SMITH, First Judge.-The first question in this case is, whether the defendant's proofs showed that a judgment was rendered in this court on the 16th day of August, 1843, in his favor against the plaintiff; and if so, whether such judgment is a proper subject of set off. Was it a judgment rendered when the decision of the court was pronounced, and a rule for reversal with costs entered in the minutes of the court? If it was in legal contemplation, a judgment rendered, as of that date, it would be a legal set off under the pleas; but if it did not become a judgment rendered, until the judgment record was in fact signed, filed and docketed, as this was not done, until after suit commenced, it would not be a legal set off, under the pleas. It should be observed that the pleas are not pleas of null tiel record. What is a judgment rendered? A judgment is a conclusion of law facts found or admitted. The judgment, though pronounced by the court, is not, technically upon |