Holmes v. D'Camp
New York Supreme Court
THIS was an action of assumpsit, tried before Mr. justice Livingston, at the New-York sittings, the 27th day of September, 1804. The declaration contained the usual counts for goods sold and delivered, money had and received, &c. and an insimul computassent. The defendant pleaded non assumpsit, with a notice of the special matter intended to be given in evidence, under the general issue.
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THIS was an action of assumpsit, tried before Mr. justice Livingston, at the New-York sittings, the 27th day of September, 1804. The declaration contained the usual counts for goods sold and delivered, money had and received, &c. and an insimul computassent. The defendant pleaded non assumpsit, with a notice of the special matter intended to be given in evidence, under the general issue. It appeared that the plaintiffs, and a person by the name of Charles Holmes, who died in May, 1801, were, for some time before, partners together in trade, under the firm of Charles Holmes and Co. that the…
1Opinion of the CourtSpencer, J.
now delivered the opinion of the court. If there had been no count in the declaration on an insimul compatassent, I should have considered the first exception as fatal, notwithstanding the cases* cited by the counsel for the plaintiffs. On examination, those cases will be found not to contradict the proposition, that in declaring on a debt contracted with the plaintiffs and another, since deceased, his death, and the survivorship of the others should be alleged; for, otherwise, it would not appear to be the same promise.
The defendant, in September, 1802, stated an a° count exhibiting the…
2Cited by35 opinions
- Bothwell v. Boston Elevated Railway Co.Massachusetts Supreme Judicial Court · 1913
- Melchoir v. McCartyWisconsin Supreme Court · 1872
- Hushes v. WheelerCourt for the Trial of Impeachments and Correction of Errors · 1827
- Hart v. HudsonThe Superior Court of New York City · 1857
- Johnson v. JonesNew York Supreme Court · 1848
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