Hamilton v. Averill & Whyte
New York Supreme Court
Error from the Clinton common pleas. Hamilton sued Averill and Whyte on an appeal bond,, bearing date 24th October, 1829, conditioned that Whyte should prosecute with dilligence an appeal taken by him from a judgment r.endered by a justice of the peace against him in favor of Hamilton, to the common pleas of Clinton, and pay the judgment and costs of such appeal, in case judgment should be given in the common pleas against him ; and further, that Whyte should pay the debt or…
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Error from the Clinton common pleas. Hamilton sued Averill and Whyte on an appeal bond,, bearing date 24th October, 1829, conditioned that Whyte should prosecute with dilligence an appeal taken by him from a judgment r.endered by a justice of the peace against him in favor of Hamilton, to the common pleas of Clinton, and pay the judgment and costs of such appeal, in case judgment should be given in the common pleas against him ; and further, that Whyte should pay the debt or damages recovered before the justice, together with the interest thereon, and costs of the appeal, if the appeal should…
1Opinion of the Court
*By the Court,
Nelson, J.
The only issue of the fact upon the record, and which was tried by the common pleas, was upon the plea of non est factum, which admitted every material allegation in the declaration, except the execution of the bond. That was proved, and the plaintiff therefore was entitled to recover. Whether the execution had been regularly issued or not was a question that could not be raised under this issue. There were other pleas which presented it, but those come up on demurrer. The judgment therefore must be reversed.
We may as well, however, decide the material question…
2Cases cited2 opinions
- People v. W. P. HaskinsNew York Supreme Court · 1831
- Allison v. WilkinNew York Supreme Court · 1828