I concur in the affirmance of the judgment on the ground that the facts which the defendant.offered to prove would not constitute a defense to the action. He did not offer to prove either an actual or constructive eviction. The laying out of a highway through the premises did not amount to an eviction from any portion of the land. If all the proceedings of the Board of Supervisors had been valid and such as to vest in the public a paramount title, it might have amounted to an eviction. But there was no offer to prove that they were valid. Until that is shown there is no sufficient ground upon which to base a defense of a failure of consideration in whole or in part.
Thornton, J.:In my judgment there was no error committed by the Court below as to counsel fees. On the other point, I agree with Sharpstein, J,, and that the judgment and order should be affirmed.