General
The People, ex rel. Fry, against The Judges of the Court of Common Pleas of the county of Delaware
6 Cow. 598·New York Supreme Court·1827·NY
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Opinion
The People, ex rel. Fry, against The Judges of the Court of Common Pleas of the county of Delaware.
ALBANY,
Feb. 1827.
An alternative mandamus was granted in this cause, commanding the defendants to vacate a rule, allowing the set off of a judgment obtained before a justice of the peace on an attachment, against the relator, in favor of Mann, to meet a judgment obtained in the C. P. of Delaware, in favor of the relator, against Mann. The judgment before the justice was obtained June 13th, 1825 ; the defendant not appearing to contest it. In the court of common pleas, affidavits were produced in behalf of the relator, to shew that nothing was due to Mann from the relator; but that if the former had any claim, it was in favor of him and another jointly.
On a return of the affidavits shewing these facts,
A judgment .obtained by attachment in a justice’s court, without the defendant appearing there, cannot be set off, on motion, against a judgment in a court of record.
S. Sherwood, for the relator,
moved for a peremptory mandamus.
S. R. Hobble, contra.
[MAJORITY — Curia.]
Curia.
The motion must be granted. By the statute, (sess. 47, ch. 238, s. 25, p. 291,) a judgment rendered upon attachment, without being contested, is but prima fa-cie evidence of a debt. It is impeachable in an action upon it. The court may as well set off a bond or note on motion.
Peremptory mandamus granted.