Harmon v. Durham
New York Supreme Court
Demurrer to rejoinder. The declaration is for goods, wares and merchandize sold the intestate in his life time. It also contains the common money counts.
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Demurrer to rejoinder. The declaration is for goods, wares and merchandize sold the intestate in his life time. It also contains the common money counts. The defendant mterposes several pleas; amongst others a plea of plene administravit prater, $50, and setting forth a balance of $600 , . , . due and owing on a contract entered into by the intestate m his life time, under seal, with Wilhelm Willinck and others, to . pay and satisfy which the goods, &c. in the hands of the defendant unadministered are insufficient, &c. The plaintiff replies that puis darrein continuance, viz. on the 12th May,…
1Opinion of the Court
By the Court,
Marcy, J.
Two objections are urged against the rejoinder: 1. That it is a departure from the plea; 2. That the matter set up by it is no answer to the replication.
The rules in relation to a departure in pleading do not, I apprehend, strictly apply to this case. The replication sets up matter happening since the plea, in avoidance of it. The object of the rejoinder is to answer this new matter; and as it has happened since the plea pleaded, it is not reasonable to require .the rejoinder in such a case to pursue and fortify the plea as strictly as it must do in the ordinary course…
2Cited by3 opinions
- Ellsworth v. BarstowSupreme Court of Pennsylvania · 1838
- Clark v. ParsonsCourt of Appeals of South Carolina · 1838
- Pelton v. Platner ex rel. ChapmanOhio Supreme Court · 1844