Goodale

Murray, C. J., concurred.

The material objections to the recovery in this case will be separately considered.

1. The paper introduced to show a payment to defendant by the plaintiff’s assignor would have been insufficient alone, if it had been objected to on the trial, but the want of such objection is equivalent to an admission of its sufficiency. Courts will not permit a party to give an apparent acquiescence which will operate to mislead and entrap his adversary. If the objection had been made in proper time, the legal presumption is, that the plaintiff would have supplied the necessary evidence, at least he would have had the opportunity of doing so.

2d. The want of evidence of a demand of a conveyance seems tobe unsupported. The record discloses a refusal in writing on the part of the defendant, which rvas not objected to, and this mast pre-suppose a demand made. It is urged, that to make the demand complete a deed should have been tendered to the defendant for his execution. This would be necessary in a common law action upon a bond or agreement to make titles. But in equity, for specific performance, such a technical requisition will not be considered indispensable,…