Stevens v. Judson

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 *473 no 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 court may give judgment non obstante veredicto. No serious inconvenience ■can therefore result from a finding by the jury of the issue joined.

But had the testimony been heard, and a verdict been found for the defendant upon his plea, the same question would have arisen which is now presented ; for if it be admitted that the judge erred in not hearing the testimony, why should we send the cause to a new trial, if we see that the defence set up cannot be available to the defendant ? Suppose the facts to be all true, do they constitute a valid defence to a sealed instrument ? This question has been often before the court in different aspects. In Dolon v. Sammis, (2 Johns. R. 179, n.) it was decided that the failure of consideration was no defence at law to an action on a bond. In Vrooman v. Phelps (2 Johns. R. 177,) on a demurrer to a plea, it was held that false and fraudulent representations of the qualities of the article sold, and which constituted the consideration for the sealed instrument on which the suit was predicated, could not be set up as a defence in a court of law. In Burr v. Lee, (4 Johns. R. 413) it is said that the seal does not preclude an inquiry into the consideration if illegal and fraudulent ; but the fraud there referred to was probably, either the illegal consideration of improperly aiding an insolvent in his discharge, which was the consideration in that case, or as was held in Dorr v. Munsell, (13 Johns. R. 430,) such fraud as relates to the execution of the instrument not affecting the consideration. These cases have been subsequently recognized in this court and in the court for the correction of errors, (9 Cowen, 309 to 315;) so that if wrong the remedy is with the legislature. I confess I can see no very good reason why this defence should be excluded from a court of law, and the party sent into a court of equity ; but so the point has always been decided. The facts contained in the .plea constitute no valid legal defence; and *474 if a new trial should be granted, and a verdict found for the defendant, this' court would be bound to give judgment for the plaintiff, notwithstanding the verdict. I think, therefore* a new trial ought not to be granted.