Stevens v. Judson
New York Supreme Court
This was an action of debt, tried at the Albany circuit in February, 1829, before the Hon. William A. Duer, then one of the circuit judges.
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This was an action of debt, tried at the Albany circuit in February, 1829, before the Hon. William A. Duer, then one of the circuit judges. The defendants executed a bond in the penal sum of $1200, bearing date 31st March, 1828, conditioned to indemnify the plaintiff’ against the payment of a promissory note mac¡e ¿y the plaintiff and the defendant Squire for the sum °f $600, payable at the New-York State Bank, in 90 days fr°m 22d January, 1828, and to deliver up the note duly can-celled. The breach assigned is that the plaintiff was forced to pay the note and was subjected to costs. The…
1Opinion of the Court
By the Court,
Savage, Ch. J.
Strictly speaking, the judge at the trial is to hear the testimony adduced to sustain and disprove the issues joined in the record. .If the evidence offered does not support the pleading, the judge may properly reject it; but if the evidence proves every fact alleged in pleading, it should be received, and the jury should find the issue according to the evidence. I will not say that there is *473no case where the judge is justifiable in rejecting the evidence offered, though it sustains the issue. If the issue itself is immaterial, a repleader may be awarded, or the…
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