Whitcomb v. Green
New York Supreme Court
Error to the Allegany C. P. The suit in the common pleas was an appeal from a judgment rendered before a justice in which Green was the plaintiff and Whitcomb & May were defendants. The declaration was on a.promissory note to which the general issue was pleaded.
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Error to the Allegany C. P. The suit in the common pleas was an appeal from a judgment rendered before a justice in which Green was the plaintiff and Whitcomb & May were defendants. The declaration was on a.promissory note to which the general issue was pleaded. On the trial in the common pleas the plaintiff having proved the note and rested, the defendants, under a notice of special matter, offered to shew that the note was given for the purchase price of growing trees sold by the plaintiff to the defendants, and that the plaintiff had no title to the land upon which the trees were.growing.…
1Opinion of the Court
By the Court, Jewett, J.(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*115fence, 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…
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