Wait v. Morris
New York Supreme Court
This was an action of assumpsit, tried at the Saratoga circuit, in November, 1829, before the Hon. Esek Cowen, one of the circuit judges. The declaration was on a promissory note for $101TS/T, dated the 30th December, 1819, payable 9 months after date.
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This was an action of assumpsit, tried at the Saratoga circuit, in November, 1829, before the Hon. Esek Cowen, one of the circuit judges. The declaration was on a promissory note for $101TS/T, dated the 30th December, 1819, payable 9 months after date. The defendant pleaded, 1. actio non accrevit infra, &c.; and, 2. a discharge under the insolvent act, exonerating him from all his debts, &c. obtained the 20th August, 1823. The plaintiff replied 1. actio accrevit, &c.; and 2. that on the 1st May, 1829, the defendant assented to, ratified and confirmed the promises, &c. The defendant rejoined,…
1Opinion of the Court
By the Court,
Savage, Ch. J.
It is settled that the mode of declaring adopted in this case is right. 14 Johns. R. 180. Though the new promise is that which sustains the action, still the plaintiff is at liberty to declare upon the original contract. The discharge is technically a release from the demand, yet it is only so technically; the debt is still due in conscience. Cowp. R. 548. The fact is confessed that the plaintiff has never received satisfaction, or consented to release the defendant; but still the discharge is a valid defence. The rules of pleading tolerate a replication of a new…
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