Hartness v. Boyd

5 Wend. 563

• Court: New York Supreme Court
• Decided: October 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

I am of opinion that the right of a defendant on an inquest does not extend so far as to allow him to introduce a substantive defence; that is, a defence which does not controvert the evidence given on the part of the plaintiff to sustain his action. If the defendant could have shewn, by a cross-examination of the witness, that the note had not in fact been made, or made under circumstances which did not render it obligatory upon the maker, he had a right to do so; but he proposed to go further; he offered to shew matter in defence. This is not allowed to a defendant when 0.11 inquest is taken. He may over* throw by a cross-examination what has been testified to by wqnegg on h¡s ¿lirect examination ; but he cannot, by the witness called by the plaintiff, establish a substantive defence. The very object of the rule in reference to inquests is to preclude a defence. If there be a defence, an inquest must be prevented by filing and affidavit of merits.

New trial denied.