Livingston v. Ostrander
New York Supreme Court
Demurrer to replication. The plaintiff declared on & note of the ancestor of the defendants, they being sued as heirs, bearing date 19th October, 1817, payable on demand. The declaration also contained the common counts, the day of the promise being the same as the date of the note. The defendants pleaded non assumpsit, infra, «fee. and actio non accrevit infra, &c.
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Demurrer to replication. The plaintiff declared on & note of the ancestor of the defendants, they being sued as heirs, bearing date 19th October, 1817, payable on demand. The declaration also contained the common counts, the day of the promise being the same as the date of the note. The defendants pleaded non assumpsit, infra, «fee. and actio non accrevit infra, &c. The plaintiff replied to the first plea, that this suit was commenced by suing out a capias on the 26th September, 1825, tested in August and returnable in October, 1825, directed to the sheriff of Herkimer, and that within six…
1Opinion of the Court
*307 By the Court,
Savage, Ch. J.
The replications in this case do not purport to be replications of a writ sued out to save the statute. In such cases, the replication states a writ issued within six years after the promise made or action accrued, and shews the first writ returned, and regular continuances down to the process upon which the defendant was arrested; but these are no more than common replications, and what is said about the suit being commenced by capias issued on the 26th September, 1825, is mere surplusage. Had that been omitted, the replications would have been perfect; no issue…
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