Davis & Center v. West
New York Supreme Court
This was an action of assumpsit tried at the Onondaga circuit in February, 1829, before the Hon. Daniel Mosely, one of the circuit judges. The plaintiffs declared on a promissory note, bearing date in November, 1820, payable on demand. The declaration was entitled as of the October term, 1837. The defendant pleaded the general^ issue, and annexed to his plea a notice that he would insist and rely upon the statute of limitations as a bar to the plaintiff’s action.
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This was an action of assumpsit tried at the Onondaga circuit in February, 1829, before the Hon. Daniel Mosely, one of the circuit judges. The plaintiffs declared on a promissory note, bearing date in November, 1820, payable on demand. The declaration was entitled as of the October term, 1837. The defendant pleaded the general^ issue, and annexed to his plea a notice that he would insist and rely upon the statute of limitations as a bar to the plaintiff’s action. On the trial the making of the note was admitted, and to avoid the effect of the statute the plaintiffs produced an exemplification…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The difficulty here is, that it was not shewn that this suit was commenced by the capias issued in October term, 1826. The plaintiff should have shewn that the copias on which the defendant was arrested, was a testatum founded on the previous writ, or an alias or pluries. It does not necessarily follow that this is a continuation of the former suit; and that -is a fact which the plaintiff is bound to shew.
*65Under the pleadings in this case, the plaintiff was bound to prove the facts which he must have averred in a replication to a plea of the statute. The precedents…
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