Citation Numbers: 1 Thomp. & Cook 95
Judges: Talcott
Filed Date: 6/15/1873
Status: Precedential
Modified Date: 1/13/2023
This is an action upon a promissory note for $200, dated January 17, 1870. The plaintiff, in August, 1869, procured the defendant to execute to him a life lease of certain real estate belonging to her. This lease, she alleged, was procured from her by the fraudulent practices of the plaintiff, and it purported to be upon the consideration of $1 in hand, and the agreement on the plaintiff to pay the future taxes which should be imposed upon the property. Soon after the date of the lease the defendant commenced an action in this court, in equity, to have the same declared void and set aside, and canceled upon the ground that the same had been obtained by fraud and imposition. Mr. Ward was the attorney in that action for Sarah Pendleton, and, at the December recess of congress in 1869, when Ward was temporarily at home from Washington, he settled the controversy, the now plaintiff releasing the life lease on the sole consideration that the suit should be no further prosecuted, and the now plaintiff should not be required to pay the costs thereof. This the plaintiff does not appear to controvert. After the suit had been settled, and the release duly executed and delivered, and, on the 17th of January, 1870, the plaintiff obtained this note from the defendant, and he testifies that the consideration of it was the release
The practice adopted by the counsel in this case, of stipulating that the bill of exceptions may, on an appeal from the judgment, be heard at the general term, without, as we assume, going to the special term, in the first instance, must not be considered as a precedent, and is discountenanced. The counsel, however, having proceeded on the idea that this can be done, we overlook, in this instance, the irregularity, upon the ground that it seems to us that the plaintiff has had a verdict when .in law he was not entitled to recover. It is possible that, upon a new trial, facts may be developed, which will show the note to have been executed upon some valid consideration. On the facts which appear to be undisputed in the case before us, the plaintiff was not entitled to recover.
Judgment reversed and new trial ordered, costs to abide the event.