Sadler v. Fisher's adm'rs
Supreme Court of Alabama
THE defendants in error brought an action of assumpsit against the plaintiff in error, in the Circuit Conrt of Lowndes, and declared on a promissory note, of the following tenor: “ On the first day of March nest, we promise to pay John Fisher, of order, eight thousand seven hundred and two seventy-three one-hundredth dollars, for value received, with interest from the first January last. February 2d, 1838.” The defendant pleaded as follows: 1st. Non assumpsit. 2d.
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THE defendants in error brought an action of assumpsit against the plaintiff in error, in the Circuit Conrt of Lowndes, and declared on a promissory note, of the following tenor: “ On the first day of March nest, we promise to pay John Fisher, of order, eight thousand seven hundred and two seventy-three one-hundredth dollars, for value received, with interest from the first January last. February 2d, 1838.” The defendant pleaded as follows: 1st. Non assumpsit. 2d. Set off. 3d. That there was a contract made between plaintiff’s intestate, John Fisher, the payee in the note, and the defendants.…
1Opinion of the CourtCollier, C. J.
A plea of matter, arising since the last continuance, as it is technically called, is a waiver of; and sub-stitutei for, all former pleas. 6 Dane’s Ab. 31. Stephen on Plead. 65; Kimba v. Pluntington, 10 Wend. Rep. 675; Yeaton v. Linn, 5 Peters’ Rep, 224 ; Wilson v. Hamilton, 4 Serg’t & Rawle’s Rep. 238. But there is a distinction as to a ground of defence, which has arisen after issue joined, and as to matter arising, pending the suit, but before plea. In the former case, the defendant must plead puis darem continuance ; in the latter, he should show that his defence arose, pending the writ,…
2Cases cited1 opinion
- Kimball & Kiniston v. HuntingtonNew York Supreme Court · 1833
3Cited by13 opinions
- McDougald's Adm'r v. RutherfordSupreme Court of Alabama · 1857
- Dryer v. LewisSupreme Court of Alabama · 1877
- Wright v. EvansSupreme Court of Alabama · 1875
- Hart v. TurkSupreme Court of Alabama · 1849
- Shaw v. LindseySupreme Court of Alabama · 1877
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