Van Epps v. Harrison
Court for the Trial of Impeachments and Correction of Errors
Debt on bond, tried at the Rensselaer circuit, before Cushman, C. Judge, in November, 1843. After the bond had been read in evidence, the defendant offered to prove fraud on the part of the plaintiff, and to make out the same case, in substance, which was offered to be proved on the former trial. (5 Hill, 63.) The evidence was offered in bar of the action, as a defence to it, in mitigation of damages, and for the purpose of diminishing the amount of the recovery.
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Debt on bond, tried at the Rensselaer circuit, before Cushman, C. Judge, in November, 1843. After the bond had been read in evidence, the defendant offered to prove fraud on the part of the plaintiff, and to make out the same case, in substance, which was offered to be proved on the former trial. (5 Hill, 63.) The evidence was offered in bar of the action, as a defence to it, in mitigation of damages, and for the purpose of diminishing the amount of the recovery. The notice of special matter under the plea of non est factum commenced by saying, that the evidence would be given “ in defence…
1Opinion of the Court
By the Court, Bronson, Ch. J.
As the executory contract to sell, on which the bond was given, had been executed on the part of the pkintiff by a conveyance of the land, we held when the case was before us on a former occasion, (5 Hill, 63,) that *247the evidence offered by the defendant was not an entire bar to the action; but could only go in abatement of damages. It follows from this doctrine that the notice was informal in calling this a bar. But the notice also states that the evidence would be given in defence of the action. It is a defence, so far as it goes—as much so as a set-off,…
2Cited by2 opinions
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