
    BAINBRIDGE vs. CLAY & AL.
    Appeal from the court of the first district.
    If a decision of the judge a quo render certain evidence useless, the party will be allowed the opportunity of introducing it, if the decision be held to be erroneous.
   Martin, J.

delivered the opinion of the court. Clay having a judgment against Oldham, and Bainbridge one against Clay, a fi. fa. issued on the latter, and was levied on Oldham's money in the hands of Polk, who in the meanwhile emptied his hands, as Oldham's agent, in the clerk's office, in discharge of Clay's judgment, and afterwards Bainbridge's fi. fa. was levied in the hands of Polk on the money he had of Oldham.

East'n. District

June 1825

On a suggestion that Polk had no other money of Oldham's, but what he had paid in court to the credit of Clay's judgment, and that Clay was insolvent; Bainbridge moved that the money in court should be applied to the discharge of his fi. fa.

Hennen, claiming the money, as assignee of Clay, on an assignment alleged to have been notified to Polk, before the levy of Bainbridge’s execution, opposed the motion.

The court refused to Bainbridge leave to shew that the money attached in Polk’s hands and that paid in were one and the same, and that Clay was insolvent, and his motion was overruled.

The first thing that strikes us is the absence of any evidence of Hennen’s assignment.

It appears to us that, considering the money as Clay’s, the court ought to have permitted the creditor to shew his levy was of no avail, there being no money due by Polk to Oldham, there then could be no good reason for refusing to order to apply the money in court to Bainbridge's execution.

The appellee urges he did not exhibit his assignment, because it became unnecessary from the view the court below took of the case, and urges the case ought to be remanded; the appellant urges the appellee must recover on the strength of his own case, not on the weakness of his opponents.

We think the appellee was excusable in refraining to make proof of his assignment, when the judge a quo apparently took it for unnecessary, and that justice will be better rendered by subjecting the appellant to some delay, than by depriving the appellee of a fair opportunity of exhibiting his title, in consequence of an erroneous view of the case, taken by the judge a quo, who probably would have refused to receive the evidence, if it had been offered, as unnecessary.

It is therefore ordered, adjudged and decreed, that the judgment of the district court, be annulled, avoided and reversed, and the case remanded, with directions to the judge to allow the appellant leave to shew that the levy in Polk's hands is of no avail, and that he owed nothing to Oldham, except what he paid in the clerk's office, and it is ordered that the appellee pay costs in this court.

Hoffman for the plaintiff, Hennen for the defendant.  