6 Johns.1. 7 ib. 540.

MAYOR, &c. vs. RICHARDSON, et al.

then, in the absence of language strongly opposing, would authorise the inference, that it was competent for the plaintiffs to acquire a right to real property, under this provision, either by gift, or by a voluntary or forced sale.

Upon the assumption, that the value of the defendants' property has been assessed by a jury, it is argued for the plaintiffs, that it was incompetent for the board of Mayor and Aldermen to have set aside the assessment, and pass the resolution on which this action is founded. If the plaintiffs, without the consent of the defendants, had set aside the assessment, and such an argument had proceeded from the defendants, it would have been entitled to much consideration. The authorities to which we have been cited by the plaintiffs' counsel, upon this point, furnish cases in which the parties, in whose favor the assessments were made, were endeavoaing to affirm them against the consent of the corporation, and hence, can not be received as authority to sustain the argu

ment."

The right to contract without the intervention of a jury, includes the right to disregard their finding, and proceed as if they had never been summoned: this is a proposition too clear for illustration.

The defendants then, having consented to receive the sum expressed in the resolution of the board of Mayor and Aldermen, as a compensation for their loss of property; the right of the corporation to widen the street, to the defendants prejudice vested, and such consent, constitutes a sufficient consideration to authorise a recovery.

The Court was certainly correct in supposing that the report of the committee, and the resolve of the

PREWETT US. MARSH.

corporation, was an admission of the defendants right to the land appropriated. If the admission was made under a wrong impression, the plaintiffs should have made it appear by proof.

We are of opinion that there is no error, and the judgment must be affirmed.

CRENSHAW, J. not sitting,

PREWETT, use of Johnson, versus MARSH.

A justice of the peace, who receives money in his official capacity, cannot law fully retain it, in satisfaction of a debt due him individually.

The nominal plaintiff in a suit, (brought in the name of such plaintiff for the use of another,) can not be rejected as a witness for the defendant where it appears that he was evidently consenting to be made a witness.

This action was instituted in the name of Prewett, for the use of Johnson, in the County Court of Clarke; and was founded on a claim for money received by the defendant in his official capacity, as a magistrate. A judgment being rendered for the defendant below, the case, on a bill of exceptions, was brought here: and the questions of error arose on the opinion of the Court below. That Court decided,

1st. That Prewett, though the nominal plaintiff, could not be a witness in favor of the defendant, and 2d. That the defendant could not show a retention of the money collected by him, in discharge of his own private debt.

PREWETT US. MARSH.

CRENSHAW, J.-This action was brought against the defendant, to recover money which he had collected in the capacity of a justice of the peace.

On the trial, "after the plaintiff had proved his case, the defendant offered to prove certain facts by Prewett, the nominal plaintiff; but who was rejected by the Court, on the ground, that as he was a party to the record, he could in no event be examined as a witness

The defendant having offered testimony to prove that the money collected by him, was due to a certain Rosser, and that Rosser was indebted to him; requested the Court to instruct the jury, that the debt due from Rosser to the defendant, was a good offset to the plaintiff's action, which the Court declined; but instructed the jury, that an officer could not detain money by him received in his official capacity, to satisfy a debt due him in his private capacity. All of which is now assigned for error.

We are of opinion that the charge was correct, and that the instruction requested, was properly refused. We believe with the Judge of the County Court, that a Justice of the Peace who receives money in his official capacity, can not lawfully detain it in satisfaction of a debt due him in his private capacity; and that it can not be the subject of payment or offset, though the person who was indebted to the Justice was to receive the money by him so collected.

But on the first assignment of error, which was the rejecting of Prewett, the nominal plaintiff, when offered as a witness by the defendant, we are of opinion, that Prewett, being a party to the record, and interested in the event of the suit, at least so far as related to the cost, the defendant could not claim the

SCOTT TS. RIVERS.

But if

benefit of his testimony as a matter of right. Prewett was willing to testify on the part of the defendant, this was against his own interest, and the defendant would be entitled to the benefit of his evidence.

In the bill of exceptions, it is not expressly stated that Prewett was willing to be sworn and examined as a witness, but it is stated "that Prewett coming to the book, and being ready to be sworn to give testimony," was rejected by the Court; and from which, the inference is plain, that he was willing to be sworn, and to give evidence. It was his privilege to claim the exemption, when called as a witness by the defendant: unless he objected, and insisted on his right, his willingness to testify, was a clear implication. For this error, the judgment is reversed,

and the cause remanded.

SCOTT versus RIVERS.

Where a party, to whom a deed has been executed, resides without the State, such circumstance will be sufficient, under the statute, to authorise a copy of the deed duly authenticated, to be received in evidence.

An offset, against a plaintiff's demand, in an action by him, to be available, and to authorise a balance in favor of defendant; must appear to be of matters mutually subsisting between the parties.

Assumpsit, in the County Court of Monroe, by Scott against Rivers, to recover the amount of a promissory note: The circumstances of the case appear fully in the opinion of the Court...

SAFFOLD, J.-The action was assumpsit on a promissory note, drawn by Rivers in favor of Scott, for

SCOTT TS. RIVERS.

$1000, the suit having been brought by the present plaintiff against the defendant, in the County Court of Monroe. The pleas were the general issue, pay-, ment and set-off. The material facts, as shewn by a bill of exceptions, taken on the trial, appear to have been, that in 1824, Thomas Scott, brother of the plaintiff, (both of whom being residents of North Carolina,) presented the note sued on, and two others of the same amount, and one of about $500, between the same parties, to the defendant, in this State, claiming them as his own property, and required security for the payment thereof. Pursuant to an ar

rangement between them, the defendant executed a deed to T. Scott, for a house and lot in Cahawba, estimated by them at $2000, which was to be applied in part payment of said notes, but there was a collateral verbal agreement, expressed between them at the time, that Scott should sell the house and lot within two years, if as much as $2000 or more, could be had for them, and in that event, the overplus, if any, should be applied as a farther payment on said notes. Scott constituted Steel, (a witness in the case,) his attorney in fact, to make sale of the property, and apply the proceeds according to agreement; delivered all the notes to him, but retained the deed in his own possession. More than twelve months afterwards, Steel saw plaintiff and T. Scott in North Carolina, the former made no mention of either the notes or deed to him, but the latter conversed with him on the subject, and said he had assigned the deed to a Mr. Haywood. Steel, plaintiff, defendant, and T. Scott, are related to each other. It also appeared the defendant had rented the house after the execution of the conveyance.