Nicholl v. Mason
New York Supreme Court
Demurrer to plea. The plaintiff declared In assumpsit. The first count of the declaration was on a joint, and several note made by the defendants for the sum of $45, payable to the plaintiff.
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Demurrer to plea. The plaintiff declared In assumpsit. The first count of the declaration was on a joint, and several note made by the defendants for the sum of $45, payable to the plaintiff. The declaration was of July term, 1834: and on the sixth day of December following, Mason one of the defendants, pleaded, first, non-assumpsit to the whole declaration; and secondly, to, the first count, that the plaintiff ought not further to have or maintain his action, &o., because after the commencement of this suit, and after the last continuance thereof, to wit, on 15th November, 1834, at, &c., the…
1Opinion of the Court
By the Court,
Bronson J.
If the second were strictly a plea puis darrien continuance, the' objections that it is pleaded with another plea, and is not verified by affidavit,, could not be taken in this'form. On demurrer there is no inquiry about collateral facts; the only question is, whether the pleading is 'good upon its face. But these objections would not' prevail on motion. When matter of defence arises after plea, and is pleaded puis, it is a waiver of the defence originally set up, and the plea should, in some cases be verified by affidavit. But here there had been no. prior issue. The…
2Cases cited3 opinions
- Renner & Bussard v. MarshallSupreme Court of the United States · 1816
- Cleveland v. RogersNew York Supreme Court · 1831
- Stiles v. StewartNew York Supreme Court · 1834
3Cited by19 opinions
- Cook v. BurnleyTexas Supreme Court · 1876
- Gray v. . Richmond Bicycle Co.New York Court of Appeals · 1901
- Wood v. LakeWisconsin Supreme Court · 1860
- President of the Bank of the United States v. Merchants Bank of BaltimoreCourt of Appeals of Maryland · 1848
- Baxter v. . DrakeNew York Court of Appeals · 1881
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