People ex rel. Fishers v. New-York Common Pleas
New York Supreme Court
[535] Motion for peremptory mandamus on the coming in of the return to an alternative writ. Shiner sued the relators in the court below and declared in covenant.
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[535] Motion for peremptory mandamus on the coming in of the return to an alternative writ. Shiner sued the relators in the court below and declared in covenant. The declaration was entitled generally of December term, 1835, which commenced on the 21st day of that month, and the breach of which the plaintiff complained was alleged to have happened on the 25th December, 1835. The defendants demurred, assigning several special causes of demurrer, but did not assign for cause that the action was prematurely brought. They relied upon this ground on the argument of the demurrer, abandoning the…
1Opinion of the Court
By the Court,
Bronson, J.
[536] The court of common pleas entirely misapprehended the decisions in the two cases to which they refer. This court has never said that a declaration can be maintained which is entitled before the cause of action accrued; or, what is the same thing, that the plaintiff ‘can sue when he has no cause of action. The objection in this case appeared upon the face of the declaration, which was no doubt bad upon general as well as special demurrer. Paul v. Graves, (5 Wendell, 76,) decides nothing to the contrary, but proceeds upon the ground that the objection would be…
2Cases cited4 opinions
- People v. Onondaga C. P.New York Supreme Court · 1833
- Boltons v. LawrenceNew York Supreme Court · 1831
- Paul v. GravesNew York Supreme Court · 1830
- Nichols v. NicholsNew York Supreme Court · 1832