Myers & Waterson v. Hunter Erwin & Co.
Ohio Supreme Court
Error to the court of common pleas of Butler county. *The action was indebitatus assumpsit, brought by Hunter Erwin & Co., against Peter Myers and Thomas W. Waterson, as partners in trade under the name of Myers & Waterson.
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Error to the court of common pleas of Butler county. *The action was indebitatus assumpsit, brought by Hunter Erwin & Co., against Peter Myers and Thomas W. Waterson, as partners in trade under the name of Myers & Waterson. The defendants in the court below pleaded, in abatement of the plaintiffs’ writ, that the several promises in the declaration mentioned, if any such were made, were made by them jointly with one Alexander P. Miller, under the name and style of Myers, Waterson & Co., and not by them alono. To this plea the plaintiffs in the court below replied, but the promises were made by…
1Opinion of the CourtSpalding, J.
The plaintiffs in error claim that the judgment below shall be reversed, because, after issue joined on the plea in abatement and found against them, a respondeat ouster was not awarded. The common-law rule on this subject is well established.
“"When a plea in abatement is regularly put in, the plaintiff must reply to it or demur. If he reply, and an issue in fact be thereupon joined and found for him, the judgment is peremptory, quod recuperet; but if there be judgment for the plaintiff on demurrer to a plea in abatement, the judgment is only interlocutory, quod respondeat ouster.” 1 Tidd’s…
2Cases cited5 opinions
- Moore v. MortonCourt of Appeals of Kentucky · 1808
- Wabash & Erie Canal v. BeersSupreme Court of the United States · 1862
- J. H. Brown & Co. v. GrinnanCourt of Appeals of Texas · 1884
- M'Cartee v. ChambersNew York Supreme Court · 1831
- Higley v. BunceSupreme Court of Connecticut · 1835
3Cited by1 opinion
- Northwestern Mut. Life Ins. v. PerrillU.S. Circuit Court for the District of Southern Ohio · 1879