Haywood's Executors v. Chestney
New York Supreme Court
Error from the Saratoga common pleas. Chestney commenced his suit in the common pleas against J. C. Halsey and H. Trowbridge, and declared against them as executors, &c. of William, l lay wood, deceased, in an action of assumpsit, laying the indebtedness by the testator—in one count charging they>ro?m'.se by him during his lifetime,and in other counts by the defendants.
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Error from the Saratoga common pleas. Chestney commenced his suit in the common pleas against J. C. Halsey and H. Trowbridge, and declared against them as executors, &c. of William, l lay wood, deceased, in an action of assumpsit, laying the indebtedness by the testator—in one count charging they>ro?m'.se by him during his lifetime,and in other counts by the defendants. Halsey, who alone was served with process, appeared and put in a plea in abatement, stating that he and Trowbridge were executors of the last will, &c. of William Haywood, deceased, and had been so called and known ■ever since…
1Opinion of the Court
By the Court,
Sutherland, J.
The utmost strictness is required in pleas in abatement. They are dilatory pleas, and looked upon with suspicion. They will not be sustained by any intendment in their favor. Thus, in Hixon v. Binns, 3 *496T. R. 185, a plea of misnomer in abatement was held bad special demurrer, for concluding with a prayer that the bill might bequashed instead of prayingjudgment of the bill. It not enough that matter in abatement is contained in the plea, unless itbepleaded in precise technical form. 2 Saunders,200, b. The opinion of Lord Ellenborongh is strong upon that point in The…
2Cited by2 opinions
- Shaw v. Butcher & HarrisNew York Supreme Court · 1838
- Harkness v. HarknessNew York Supreme Court · 1843