Ellwood v. Monk
New York Supreme Court
Demurrer to plea. The declaration in this case contains several special counts in assumpsit; the second count sets forth three several promissory notes made by one Johannes Monk to the plaintiff, each for a quantity of hemlock boards dated in November, 1819, and payable in January, 1822, 1823 and 1824. It is then averred that on 1st January, 1823, the defendant, Jacob Monk, in consideration that Johannes Monk then and there, to wit, at the place mentioned in the declaration,…
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Demurrer to plea. The declaration in this case contains several special counts in assumpsit; the second count sets forth three several promissory notes made by one Johannes Monk to the plaintiff, each for a quantity of hemlock boards dated in November, 1819, and payable in January, 1822, 1823 and 1824. It is then averred that on 1st January, 1823, the defendant, Jacob Monk, in consideration that Johannes Monk then and there, to wit, at the place mentioned in the declaration, gave and delivered to him a large portion of property of great value, to wit, of the value of $500, undertook and…
1Opinion of the Court
By the Court,
Marcy, J.
The third plea is clearly bad, because it sets up as a defence a fact which the plaintiff must have proved if the defendant had pleaded the general issue; but an objection to a special plea, because it amounts to the general issue and no more, cannot prevail unless it be specially assigned as cause of demurrer. The plaintiff, not having the right to insist upon this objection, the plea is good, unless the contract set forth in the declaration is a valid contract without being in writing. If the plea does not answer all the counts where it professes to do so, the demurrer…
2Cited by25 opinions
- Barker v. BucklinNew York Supreme Court · 1846
- Eddy v. RobertsIllinois Supreme Court · 1856
- Crone v. StindeSupreme Court of Missouri · 1900
- Baker v. EglinOregon Supreme Court · 1884
- Spann v. BaltzellSupreme Court of Florida · 1847
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