Ziele v. Executors of Campbell
New York Supreme Court
This cause came before the court, on a writ of error from the Albany common pleas. The executors of Campbell brought an action of assumpsit in the court below, for work and labor done by the testator; the plea was the general issue.
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This cause came before the court, on a writ of error from the Albany common pleas. The executors of Campbell brought an action of assumpsit in the court below, for work and labor done by the testator; the plea was the general issue. On the trial the plaintiff proved that the defendant and several other persons who had located a certain tract of unappropriated land, met at a certain place, and the testator, who was a surveyor, attended also, by appointment of some of the persons interested in the location, and was employed with the knowledge and consent of them all to survey the land which he…
1Opinion of the CourtKent, J.
This objection might have been good in a pl.ea of abatement, but is inadmissible, if raised at the trial, upon the general issue. The case of Rice v. Shute, (5 Burr. 2617,) and Abbot v. Smith, (2 Black. Rep. 947,) have solemnly and fully settled this point; and the principle, or ground of the decision in those cases, applies equally to this case, and to every other case where two or more defendants are responsible on a joint undertaking. “ It is convenient and just that the defendant should take advantage of this objection (if at all) at the beginning of the suit, and plead it in abatement;…
2Cases cited8 opinions
- Barry v. FoylesSupreme Court of the United States · 1828
- Le Page v. McCreaNew York Supreme Court · 1828
- Kenyon v. SquireWashington Supreme Court · 1890
- Harrow v. DuganCourt of Appeals of Kentucky · 1838
- Brown v. WarramCourt of Appeals of Maryland · 1815
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3Cited by1 opinion
- Nealley v. MoultonSuperior Court of New Hampshire · 1842