Mercein v. Smith
New York Supreme Court
On error from the superior court of the city of New-York. The declaration was for money had and received by Mercein, the defendant in the court below, for the use of Mrs. Smith, the plaintiff below, as administratrix of Jonathan Smith deceased. The defendant pleaded, 1. non assumpsit; 2. actio non accrevit, fyc.; and 3. set-off.
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On error from the superior court of the city of New-York. The declaration was for money had and received by Mercein, the defendant in the court below, for the use of Mrs. Smith, the plaintiff below, as administratrix of Jonathan Smith deceased. The defendant pleaded, 1. non assumpsit; 2. actio non accrevit, fyc.; and 3. set-off. The third plea, after reciting that the plaintiff’s cause of action, if any, arose from moneys received by the defendant on two policies of insurance effected by him in his own name on account of himself, the plaintiff’s intestate and one Everitt, the owners of a…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The demurrer extends only to such "portions of the pleadings as relate to that part of the third plea which seeks to set off a debt arising since *213the death of Smith. The plea of set-off resembles so much a declaration, that two or more parts of it are considered as so many counts in a declaration, and are to be replied to accordingly : and hence, if one part is good, and another bad, the demurrer should be confined to the part defective; otherwise it will fail. (Dowsland v. Thompson, 2 Black. Rep. 910. Bab. on Set-Off, 83.) (a) Here the pleadings have resulted in…
2Cases cited8 opinions
- Talmage v. ChapelMassachusetts Supreme Judicial Court · 1819
- Fry v. EvansNew York Supreme Court · 1832
- Mowry v. AdamsMassachusetts Supreme Judicial Court · 1817
- Barnes v. ModisettIndiana Supreme Court · 1833
- Hills v. Tallman's administratorNew York Supreme Court · 1840
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