Tissot v. Throckmorton
Before: Heydeneflt
Synopsis
The objection, that a wife is improperly joined with the husband as party plaintiff, should be taken advantage of by demurrer, and comes too late on appeal.
Where in an action on a promissory note, the defence sot up is, that the defendant executed' said note as the consideration for a deed from plaintiff for certain land, under false and fraudulent representations that plaintiff had an interest therein, the defendant, if he would avoid payment, must offer to surrender the deed to be cancelled, so that both parties could have been remitted to their original rights.
Mr. Justice Heydeneflt delivered the opinion of the Court. Mr. Chief Justice Murray concurred.
The objection that the wife is improperly joined comes too late; it should have been taken advantage of by demurrer.
The defence set up as a reason for a continuance, or for a new trial, is not maintainable in this form. The defendant obtained for his note a deed to the land; if he can avoid the payment, he must give up the land, or he should have offered to surrender the deed to be canceled, so that both parties could have been remitted to their original rights.
Judgment affirmed.
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