Marston v. Lawrence
New York Supreme Court
This was an action on a promissory noté, by the endorsee against the endorsers. The defendants pleaded in abatement a former suit by the same plaintiff against them, on the.‘same note, to which he had pleaded in abatement, that one Francis Child was a partner, and ought to have been joined with them, which suit was pending at the commencement of the present action, and is still pending.
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This was an action on a promissory noté, by the endorsee against the endorsers. The defendants pleaded in abatement a former suit by the same plaintiff against them, on the.‘same note, to which he had pleaded in abatement, that one Francis Child was a partner, and ought to have been joined with them, which suit was pending at the commencement of the present action, and is still pending. Replication, nul tiel record, and issue. , It appeared, that on the J3th of December, 1799, after receiving the plea in abatement, a discontinuance was entered by the plaintiff in'the first suit; that the…
1Per curiam
It is sufficient if the nil capiat per breve be entered at any time before replication in the second suit.(a) The cases cited show that a discontinuance may be entered at any time before plea pleaded in the second suit,, without leave, and without costs. In a plea of abatement, the defendant must verify his whole plea.(b) (Comyns Abat. I. 11.) , If he *474does not, he must answer over, and where the plea is triable ■ by record, there may be a judgment of respondeas ouster, as well as where the trial is by certificate or inspection. (Comyns Abat. I. 14.)(c)
Judgment of respondeas ouster.
But a…
2Cases cited4 opinions
- Commonwealth v. ChurchillMassachusetts Supreme Judicial Court · 1809
- Columbia Turnpike Road v. HaywoodNew York Supreme Court · 1833
- Haight v. HolleyNew York Supreme Court · 1829
- Trotter & Douglass v. MillsNew York Supreme Court · 1831
3Cited by7 opinions
- Commonwealth v. ChurchillMassachusetts Supreme Judicial Court · 1809
- Hyatt v. . IngallsNew York Court of Appeals · 1891
- Downer v. GarlandSupreme Court of Vermont · 1849
- Walker v. VandiverTennessee Supreme Court · 1915
- Gamsby v. RaySupreme Court of New Hampshire · 1872
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