Winchell v. . Hicks
New York Court of Appeals
Appeal from the Supreme Court. Action on a joint and several promissory note, made by Bowman, Hicks, Kilmer and Tanner, commenced September 6, 1854. The note became due May 2, 1847. The answer set up the statute of limitations. Bowman died after is^ue joined and before trial. At the trial, before Mr. Justice Rockwell, at the Dutchess Circuit, it was admitted that the note was given for money loaned to Bowman, and that he was principal and the other defendants sureties.
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Appeal from the Supreme Court. Action on a joint and several promissory note, made by Bowman, Hicks, Kilmer and Tanner, commenced September 6, 1854. The note became due May 2, 1847. The answer set up the statute of limitations. Bowman died after is^ue joined and before trial. At the trial, before Mr. Justice Rockwell, at the Dutchess Circuit, it was admitted that the note was given for money loaned to Bowman, and that he was principal and the other defendants sureties. The interest on the note was paid by Bowman annually, and indorsed up to May 4, 1850. The plaintiff, at sometime between this…
1Opinion of the CourtAllen, J.
Since the, decision of this court in the cases of Van Keuren v. Parmelee (2 Comst., 527), Shoemaker v. Benedict (1 Kern., 185), and I might add Reed v. McNaugh ton, reversing the decision of the Supreme Court, reported in 15 Barbour, 168, the following propositions in relation tc a defence arising under the statute of limitations, may be considered as established:
1. That the action must be sustained upon the new promise, though the original contract is the cause of action, and the complaint counts upon that as the ground of recovery.
2. That to revive or renew the debt there must be either an…
2Cases cited2 opinions
- Dunham v. DodgeNew York Supreme Court · 1850
- Reid v. McNaughtonNew York Supreme Court · 1853
3Cited by99 opinions
- Vail v. . ReynoldsNew York Court of Appeals · 1890
- Harper v. . FairleyNew York Court of Appeals · 1873
- Manchester v. . BraednerNew York Court of Appeals · 1887
- Trustees of East Hampton v. . KirkNew York Court of Appeals · 1877
- Brooklyn Bank v. . BarnabyNew York Court of Appeals · 1910
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