Whitcomb v. Green

2 Denio 113

Opinion

By the Court, Jewett, J.

Footnotes

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(a)

The counsel for the defendant in error assumes that the defendants before the justice could not have been permitted to give evidence of the failure of the consideration of the note, as" it would have involved the question of title to lands, of which the justice had no cognizance; that if the defendants below desired to avail themselves of such de fence, they should have pleaded title before the justice according to the requirements of the statute. On the other hand, it is insisted that a defendant can avail himself on appeal of any evidence which would have been admissible under the pleadings, if the suit had been originally commenced in the common pleas.

By the statute relied on by the counsel for the plaintiffs in error it is provided (§ 216) that “ every issue of fact so joined or brought up on appeal shall be tried by a jury, or referred in the same manner as if the same had been joined in a suit originally commenced in the court of common pleas.” The evidence offered would have been admissible under the pleadings if the suit were an original one in the common pleas, instead of an appeal. The case of Dewey v. Bordwell, referred to by the counsel for the defendant in error was an appeal from a justice’s judgment in an action of trespass quare clausum fregit. The plea before the justice was the general issue. It was held that the defendant was not at liberty to show title in himself on the trial in the common pleas, because such evidence was not admissible under those pleadings in any court.

We think the common pleas erred in the case before us in excluding the evidence. There must be a venire de novo.

Judgment reversed.

This cause was decided at May term, 1845.