Conger v. Johnston
New York Supreme Court
Declaration in assumpsit on promises by the testator; plea 3d, actio non &c. because the defendants say, that the said several supposed causes of action in the said declaration mentioned, if any such there were, or still are, did not, nor did any or either of them accrue to the said plaintiff within six years &c. Demurrer, assigning for cause, that the plea does not sufficiently confess the action, nor give color to the plaintiff.
1Opinion of the Court
By the Court, Bronson, Ch. J.
Eveiy plea in confession and avoidance must give color, by admitting an apparent or prima facie right in the plaintiff. It must either expressly or impliedly confess that but for the matter of avoidance contained in the plea, the action could be maintained. This plea makes no such confession, and is therefore bad. Instead of saying, as the pleader should have done, that the several causes of action mentioned in the declaration did not accrue within six years; the words are that the several supposed causes of action mentioned in the declaration “if any such there…
2Cited by10 opinions
- State ex inf. Hadley v. Delmar Jockey ClubSupreme Court of Missouri · 1906
- Goddard v. FultonCalifornia Supreme Court · 1863
- Arthur v. BrooksNew York Supreme Court · 1853
- Staten v. HammerSupreme Court of Iowa · 1903
- Corn v. LevyAppellate Division of the Supreme Court of the State of New York · 1904
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