Henry Anderson and another v. Peter Cunningham, 2 Rob. 465

Garland, J. Upon the application of the plaintiffs for a rehearing, we have re-considered our opinion. There is a credit of $500 given to the defendant in the account of the plaintiffs, which they allege to be the proceeds of the note of Dakin 6c Dakin, collected by them, and it is rendered probable by a re-examination of the testimony. The credit is at a date different from that when the sheriff returned the execution; the sum is not the same, nor is it stated to be the money recovered from Dakin & Dakin; but the plaintiffs say it is the same, deducting the expenses of recovery.

During the argument, the counsel for the defendant contended there were serious errors in the accounts between the parties, other than that considered by us. His pleadings show the assertion of these claims, but the evidence not making them clear they were not examined. Under all the circumstances, we think the justice of the case will be best attained by setting aside the final judgment rendered by us, and remanding the case for a new trial, when each party will have an opportunity of more fully explaining their respective claims.

It is, therefore, ordered, that the judgment heretofore rendered herein be set aside and annulled ; and it is further ordered and adjudged, that the judgment appealed from be annulled and reversed, and the cause remanded for anew trial, to be.proceeded in according to law; the plaintiffs paying the costs of this appeal.