Ontario Bank v. Rathbun
New York Supreme Court
This was an action of assumpsit, tried at the Oneida circuit in April, 1836, before the Hon. Hiram Denio, then one of the circuit judges. The plaintiffs declared on the common money counts, laying the promises on the 2d Decembér, 1817. The declaration was entitled of October term, 1835. The defendant pleaded 1. the general issue; 2. non-assumpsit infra sex annos; and 3. actio non-accrevit infra, &c.
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This was an action of assumpsit, tried at the Oneida circuit in April, 1836, before the Hon. Hiram Denio, then one of the circuit judges. The plaintiffs declared on the common money counts, laying the promises on the 2d Decembér, 1817. The declaration was entitled of October term, 1835. The defendant pleaded 1. the general issue; 2. non-assumpsit infra sex annos; and 3. actio non-accrevit infra, &c. To each of the special pleas there were two replications, 1. taking issue generally, and 2. the issuing and delivery of a capias to the sheriff of Genesee, in December, 1817, returnable in…
1Opinion of the Court
By the Court,
Cowen, J.
The argument urged in favor of a new trial is that the plaintiffs failed to maintain the issue upon the pleas of the statute of limitations, on account of the lapse of time between the issuing of the first capias, and the testatum capias; that the intermediate time cannot exceed 6 years ; that the issuing of the original capias ought not to be more than equivalent to a new promise which would continue in force for 6 years only. All the intermediate process stated by the continuance roll are said to be a fiction, which should not in justice be allowed to avail for more…
2Cited by2 opinions
- Johnson v. MeadMichigan Supreme Court · 1885
- Blair v. CaryWisconsin Supreme Court · 1859