15 Wend. 338 | N.Y. Sup. Ct. | 1836
By the Court,
The plaintiff in error, to prove that under the general issue he should have been permitted to give evidence of a private road having been laid over the locus in quo, refers to 3 Starkie's Ev. 1456, where it is stated that under the general issue the defendant may give in evidence any matter which contradicts the plaintiff’s evidence, or shows that the act complained of is not in its own nature a trespass at common law. Thus he may show that the locus in quo is his own freehold, or that of another by whose authority he entered, or that he has any other right or title to the possession, &c. This is all correct, but it is not applicable to this case. In the same book cited by the plaintiff’s counsel, in a subsequent page, p.,1462, is found ,the law which must govern this case; it is as follows: “ But the defendant cannot under
Judgment affirmed.