Pelham agt. Bryant.

the action. The first paragraph of the next section is equally a provision concerning this same rule of evidence. It provides that the rule just declared in the previous section, to wit: that "no person offered as a witness shall be excluded by reason of his interest in the event of the action, shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended." Can it for a moment be pretended that this second paragraph in section 399 is not a provision concerning a rule of evidence? Prior to the passage of the act in question, all actions upon contract were required to be brought in the name of the party to the contract, although the interest in the contract had been assigned to another. The present Code has changed that rule, and the action must now be brought in the name of the party in interest. The consequence of this change was to allow the assignor to be a witness for the party to whom he had assigned the contract or cause of action. The legislature have said in the paragraph under consideration, that when the assignor is examined as a witness in such a case, the party against whom he is called shall be allowed to testify in regard to the same matter. This is most certainly a provision of this act concerning the new rule of evidence, which the Code itself has introduced, and the next paragraph upon which the whole question under consideration turns, is nothing more nor less than a provision or enactment, placing restrictions, and throwing barriers for the protection of parties around this same rule, which the provisions of the Code itself have introduced, allowing the assignor in such cases to be sworn. The second paragraph declares, that if the assignor is examined, the adverse party shall be allowed to testify as to the same matter; and the last paragraph provides, that the assignor shall not be admitted to be examined unless the other party to the contract or thing in action, &c., is living and can be procured; nor unless ten days' notice of the intention to examine him, &c., be given in writing to the adverse party, &c. These are all provisions concerning the same rule, of allowing the assignor to testify, and are enactments, or provisions of this act, imposing restrictions upon the right to examine such assignor. It is

Pelham agt. Bryant.

a rule of evidence under this section of the Code, that the assignor in such cases shall not be allowed to give evidence as a witness unless the other party to the contract, &c., is living, and his testimony can be procured; nor unless the ten days' notice is given. This is not a rule of practice, but of evidence. It is most certainly a provision of the Code, concerning a rule of evidence, and the 15th sub. of the 64th section applies all the provisions of the Code concerning the rules of evidence to these courts. There is the same reason for requiring this notice to be given in justices' courts as in any other, and I do not see any reason existing, either in the statute or the nature of the case, why this provision should not be applied to justices' courts; on the contrary, it is highly important in any state to have the same rules of evidence obtain in all the courts of the state.

I am aware that the county court of Cortland county have given a different construction to this provision of the Code, (see Warren agt. Helmer, 8 How. Pr. R. 419,) and have held that it has no application to justices' courts. Judge KINGSLEY, however, fell into an error in that case, in regarding the 15th sub. of section 64 of the Code, as applying the common law rules of evidence, or rather in giving that provision the effect of applying the common law rules of evidence, and nothing more, to these courts. Such was not the design of the enactment. These courts would take the common law rules of evidence as a part of their jurisdiction by implication, without any enactment upon the subject. But these provisions of the Code to which we have adverted, and which have made such important innovations upon the common law rules of evidence would not apply to justices' courts, were it not for this 15th subdivision of § 64. The Code is divided into two parts: the first part relates to courts of justice and their jurisdiction, and the second relates to civil actions, and is distributed into fifteen titles; and by the 8th section of the Code the first four titles of the second part are applied to all the courts of the state, while the remaining eleven titles are applied to the several courts of record only, naming them. None of the sections,

Pelham agt. Bryant.

therefore, concerning the rules of evidence to which we have referred, would apply to these justices' courts but for this 15th subdivision of § 64, for there is no statute applying the Code generally to these courts; and, besides, it is very apparent from the act itself that the legislature did not intend to give it a general application to justices' courts. They have provided in the act a distinct system of pleading for justices, and have throughout regulated the practice in those courts by distinct enactments; and this 15th subdivision of § 64 has applied the provisions of the Code respecting the rules of evidence to these courts, that we might have the same rules of evidence obtain in all the courts.

In the case of Falcon agt. Beese, (8 How. Pr. R. 341,) the full bench of the fourth district assumed that this provision requiring ten days' notice of the intended examination of the assignor did apply to justices' courts, and in that case they reversed the judgment of the justice solely upon the ground that the notice of the intended examination of the assignor was defective, in not stating the points upon which the party purposed to examine him, deciding that the justice erred in holding the notice sufficient without such specification. This case must be regarded as an authority holding this provision applicable to justices' courts; for if no notice of the intended examination is required in justices' courts, certainly the court could not hold it an error, for which the judgment should be reversed, because a defective notice had been served in a case where no notice was required, and where the party had a perfect right to examine his witness without any notice.

The argument which was addressed to the court arising from the inconvenience or impossibility of giving this notice in some cases, affords no answer to so plain an enactment as this statute, A perfect answer to this argument is, that the party never had any such right as is contended for. He could never have the benefit of this testimony of the assignor at all, before the passage of this act; for the suit had to be brought in the name of the assignor. It does not, therefore, lie with a party in whose behalf the legislature had so extended the rules of evidence to VOL. X.

5

Sloan agt. Kane and Grant.

complain, that the legislature have placed these barriers around the rule for the protection of the opposite party. If he claims the benefit of the rule, he must take it cum onere. I am of opinion, for the reasons above stated, that we must hold this provision requiring ten days' notice applicable to justices' courts. The plaintiff having produced prima facie evidence of the service of such notice, the defendant had a right to disprove the fact of service, by the person who it was alleged had served the notice.

The court erred in rejecting the evidence, and the judgments both of the county courts and the justice must be reversed for this reason.

SUPREME COURT.

SLOAN agt. KANE and GRANT.

Where it appeared that the consent (if any was actually given) of a minor female to a marriage contract was obtained by fraud, through a plot of the pretended husband, in which the priest shared pretty largely-held, that the marriage was a nullity, and a disgrace to the men (!) concerned in it.

New-York Special Term, 1854.-This is an action by the mother, to procure sentence of nullity against a fraudulent marriage of her minor daughter.

ROOSEVELT, Justice. The alleged wife, as well as the pretended husband, is made defendant. Since the service of the summons the latter, it appears, has departed for Europe, leaving the complaint to be taken as confessed against him; and the former, on the reference, has, without objection, been examined as a witness to establish the case against both. Her statement-which is confirmed by other witnesses-shows that in November, 1852, after a few days' acquaintance, Kane, who is a widower of fifty, induced her, 'with another young lady, to go to the opera, and afterward, at a saloon in the neighborhood, instead of water, which she asked for, prevailed on her to take

Kneedler agt. Sternberg.

some mixture, which so far overcame her brain that she could not recollect what occurred for some time after, till she found herself, about midnight, at the house of father in Williamsburgh. There the padre, she says, gave her champagne, in the presence of Kane; and while under its influence, without her consent, after mumbling over some Latin sentences, which she did not understand, to her astonishment pronounced them man and wife. Other particulars are given by her not necessary here to repeat, except that she immediately refused, and has ever since refused, to cohabit with her pretended husband, or to acknowledge any claims on his part in that or any other character. It further appears that she was actually engaged at the time to another person of suitable age, and that the leading object of the newly pretended lover was to get possession, not of her heart, but of her inheritance; while the motive of another actor in the scene was to save her creed and secure a hundred dollars.

The whole proceeding reflects nothing but disgrace upon the full-grown men engaged in it; and to allow the plot to be successful would be a reproach to the law.

I unhesitatingly agree with the referee, judge UlSHEFFER, that the marriage, such as it was, comes fully within the meaning of the statute, and that "the consent of one of the parties (if any was given) was obtained by force or fraud." (2 R. S. 142.) A sentence of nullity must, therefore, be entered.

SUPREME COURT.

KNEEDLER agt. Sternbergh.

The plaintiff may demur to an answer containing new matter in defence, although not constituting a counter claim. (See 9 How. Pr. R. 481, 488, adverse.)

A plaintiff cannot demur to a mere denial of the complaint.

▲ counter claim, within the Code, must be a cause of action on the part of the defendant; and sometimes what, in modern times, has been considered a right of recoupment is a counter claim, and sometimes it is not.