Maynard v. Talcott
New York Supreme Court
The question in this case arose upon a demurrer to the complaint. The action was upon a promissory note bearing date the 16th of January, 1850, payable six months after date. The only cause of demurrer relied upon was that it was not averred and did not appear in and by the complaint that the note had become due at the time of the commencement of the action.
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The question in this case arose upon a demurrer to the complaint. The action was upon a promissory note bearing date the 16th of January, 1850, payable six months after date. The only cause of demurrer relied upon was that it was not averred and did not appear in and by the complaint that the note had become due at the time of the commencement of the action. There was no statement in the complaint of the time of the commencement of the action, or that the note had become due before the suit was commenced; and the complaint was not dated.
1Opinion of the Court
By the Court,
Hoyt, J.
Under the former system of pleading it was held that a declaration entitled of the term generally related to the first day of term; and where issue was joined upon it, and it appeared upon the trial that the plaintiff’s cause of action did not become due until after the first day of term, the plaintiff was permitted to show, by evidence, the actual time of the commencement of the suit to be different from that which it purported to be, by the record. (Lester v. Jenkins, 8 Barn. & Cress. 239. Granger v. George, 5 Id. 149. Milton v. Gilderstone, 5 Barn. & Ald. 847. Morris…
2Cases cited3 opinions
- Lowry v. LawrenceNew York Supreme Court · 1803
- Cheetham v. LewisNew York Supreme Court · 1808
- Waring v. YatesNew York Supreme Court · 1813
3Cited by6 opinions
- Dolan v. BaldridgeWashington Supreme Court · 1931
- Smith v. . HolmesNew York Court of Appeals · 1859
- Carberry v. German Insurance Co. of Freeport, IllinoisWisconsin Supreme Court · 1881
- Duke v. TracyNew Jersey Superior Court Appellate Division · 1969
- Friend v. PitmanSupreme Judicial Court of Maine · 1898
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