Lipe v. Becker
Court for the Trial of Impeachments and Correction of Errors
Debt on an appeal bond. The declaration sets forth the Bond, which was dated March 24,1841, and was in the penalty of $150, and recited that Lipe had recovered a judgment against Saltsman before a justice of the peace for $75, and that the latter had appealed to the common pleas of Montgomery county; and it was conditioned as provided by the statute, (2 R. S. 259, § 189.) The declaration then averred a recovery by the plaintiff in the common pleas on the appeal, for $155,05…
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Debt on an appeal bond. The declaration sets forth the Bond, which was dated March 24,1841, and was in the penalty of $150, and recited that Lipe had recovered a judgment against Saltsman before a justice of the peace for $75, and that the latter had appealed to the common pleas of Montgomery county; and it was conditioned as provided by the statute, (2 R. S. 259, § 189.) The declaration then averred a recovery by the plaintiff in the common pleas on the appeal, for $155,05 damages and costs, and that the same had'not been paid, and then contained this averment; “ that according to the…
1Opinion of the Court
By the Court, Jewett, J.
It is a general rule in pleading that whatever facts are necessary to constitute the cause of ac*570tion must be directly and distinctly • stated in the declaration. Arguments,' inferences and matters of law are to be excluded. It is also a well settled rule, that in giving judgment upon a demurrer the court will, notwithstanding the defect of the pleading demurred to, give judgment against the party committing the first fault in pleading, if the defect is one of substance. (Carpenter v. Alexander, 9 John. 291; Van Ness v. Hamilton, 19 id. 349 ; Patcher v. Sprague, 2 id.…
2Cases cited2 opinions
- Miller v. MaxwellNew York Supreme Court · 1836
- Carpenter v. AlexanderNew York Supreme Court · 1812
3Cited by9 opinions
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- Shaw v. . TobiasNew York Court of Appeals · 1849
- Teall v. Van WyckNew York Supreme Court · 1851
- Trow City Directory Co. v. CurtinU.S. Circuit Court for the District of Southern New York · 1888
- Balz v. UnderhillNew York Supreme Court · 1897
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