Auburn & Owasco Canal Co. v. Leitch
New York Supreme Court
Demurrer to a replication. The declaration was in assumpsit for the recovery of certain instalments due upon shares of the capital stock of the plaintiff’s corporation, subscribed for by the defendant. Pleas, 1. Non-assumpsit. 2. Nul tiel corporation. Replication to the second plea, setting out the act incorporating the plaintiff, together with certain acts amending and continuing that act. The defendant demurred to the replication, and the plaintiff joined in demurrer.
1Opinion of the Court
By the Court, Bronson, C. J.
The defendant insists that the declaration is bad on general demurrer. [The chief justice then examined the pleadings, and came to the conclusion that the declaration was substantially defective; and then proceeded as follows:] But it is said, that as the defendant pleaded non assumpsit as well as nul tiel corporation, he cannot upon this demurrer go back, and attack the declaration; and several cases have been cited to sustain that position. But it will be found on examination that the point has never been directly and necessarily adjudged. The doctrine was first…
2Cases cited3 opinions
- Miller v. MaxwellNew York Supreme Court · 1836
- Russell v. RogersNew York Supreme Court · 1836
- Dearborn v. KentNew York Supreme Court · 1835
3Cited by3 opinions
- Shaw v. . TobiasNew York Court of Appeals · 1849
- Vermont v. Society for the Propagation of the GospelU.S. Circuit Court for the District of Vermont · 1827
- Baltimore Trust Co. v. ZamanskyBaltimore City Superior Court · 1925