M'Neil v. Scoffield
New York Supreme Court
ON certiorari. The plaintiff below declared against the defendant, in assumpsit, for 25 dollars, difference agreed to be paid by the defendant, on an exchange of horses between him and the plaintiff ; and also for 25 dollars, for fraud in the exchange of horses, and concluded to the damage of 25 dollars. The defendant pleaded the general issue and a set-off.
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ON certiorari. The plaintiff below declared against the defendant, in assumpsit, for 25 dollars, difference agreed to be paid by the defendant, on an exchange of horses between him and the plaintiff ; and also for 25 dollars, for fraud in the exchange of horses, and concluded to the damage of 25 dollars. The defendant pleaded the general issue and a set-off. It was proved, that the defendant had confessed that he exchanged horses with the plaintiff, and was to pay a sum of money for the difference in the price ; but how much the witness did not recollect. It was also proved, that the…
1Per curiam
It is objected, that a count on contract and fraud could not be joined in the same declaration* This would, no doubt, be a valid objection, on a motion in arrest of judgment here, where the court are judges of the law, and the jurors decide on the facts : But in proceedings before justices of the peace, under the act *437for the recovery of debts to the value of 25 dollars, the jury may decide both the law and the fact. Again, `where the party makes no objection to the pleadings at the time, but consents to go to trial upon them, we have repeatedly decided, that he shall not avail himself of any…
2Cited by4 opinions
- Capital Traction Co. v. HofSupreme Court of the United States · 1899
- Delancy v. NagleNew York Supreme Court · 1852
- Blumburg v. BriggsSuperior Court of Buffalo · 1887
- Capital Traction Co. v. HofSupreme Court of the United States · 1899