Otis v. Hitchcock
New York Supreme Court
Case of repleader. The defendant, in an action of assumpsit on a promissory note, pleaded non-assumpsit and an insolvent discharge, exempting him from imprisonment. The plaintiff joined issue upon the first plea, and denied the granting of the discharge. The cause was tried, and the jury found for the plaintiff on the first plea, and for the defendant on the second.
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Case of repleader. The defendant, in an action of assumpsit on a promissory note, pleaded non-assumpsit and an insolvent discharge, exempting him from imprisonment. The plaintiff joined issue upon the first plea, and denied the granting of the discharge. The cause was tried, and the jury found for the plaintiff on the first plea, and for the defendant on the second. The plaintiff now moved for a general judgment, non obstante veredicto, on the ground that the second plea does not allege that the defendant was an inhabitant of the county where the officer resided to whom the petition for his…
1Opinion of the Court
By the Court,
Marcy, J.
The plea setting forth the discharge is substantially defective. It does not set forth enough to shew that the officer granting it had jurisdiction. It does not aver that the defendant was imprisoned in, or a resident of Ontario county, when he made his application to the first judge thereof for his discharge. Is this a case for a repleader, or shall a general judgment be given for the plaintiff, notwithstanding the verdict for the defendant, on the issue formed by this plea ? Where a plea is good in form, but not in fact, or, in other words, if it contain a defective…
2Cited by2 opinions
- Hill v. RaglandCourt of Appeals of Kentucky · 1902
- Day v. Orient Mutual InsuranceNew York Court of Common Pleas · 1860