Fowler v. Hait
New York Supreme Court
IN ERROR, on certiorari, from a justice’s court. Hait brought an action against Fowler, before the justice, for the breach of a contract in the sale or exchange of a horse. The defendant pleaded the general issue, and being asked if he bad any account or demand to set off, he answered that he had no account or demand to offer. The plaintiff demanded a trial by jury.
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IN ERROR, on certiorari, from a justice’s court. Hait brought an action against Fowler, before the justice, for the breach of a contract in the sale or exchange of a horse. The defendant pleaded the general issue, and being asked if he bad any account or demand to set off, he answered that he had no account or demand to offer. The plaintiff demanded a trial by jury. At the trial, the defendant offered a certificate of another justice, of a former trial, before him, between the same parties. The plaintiff . . , objected, that the certificate ought to have been pleaded at the time issue was…
1Per curiam
The defendant having omitted to plead, or give notice of the former trial and judgment, was precluded from giving evidence of it, at the trial. It would produce surprise on the part of the plaintiff and injustice, if the defendant were allowed to set up, at the trial, special matter in bar, of which no notice had been previously given to the plaintiff The judgment musíbe affirmed.
Judgment affirmed.(a)
See Waring v, Lockwood, ante, p. 108.
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