Thomas v. Cameron
New York Supreme Court
Demurrer to plea. The plaintiffs declared in assumpsit on' promises to the testator in his lifetime, and made profert of the letters testamentary in the usual form. Pleas, 1. Non assumpsit ; 2. Actio non, because the plaintiffs were not at the time of the commencement of the suit executors of the last will and testament of. the said Benjamin Gilbert, deceased, nor had they the execution thereof in manner and form, &c. concluding with a verification and prayer of judgment.
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Demurrer to plea. The plaintiffs declared in assumpsit on' promises to the testator in his lifetime, and made profert of the letters testamentary in the usual form. Pleas, 1. Non assumpsit ; 2. Actio non, because the plaintiffs were not at the time of the commencement of the suit executors of the last will and testament of. the said Benjamin Gilbert, deceased, nor had they the execution thereof in manner and form, &c. concluding with a verification and prayer of judgment. Demurrer to the 2d plea, assigning for special cause, that it is pleaded with and after a plea of the general issue.…
1Opinion of the Court
By the Court, Bronson, J.
If the second plea was well pleaded in bar, instead of being pleaded in abatement, I see no objection to its being joined with the general issue. On non assumpsit alone, the plaintiffs on the trial would not have been obliged to prove their representative character. 2 Stark. Ev. 547, 8, and cases cited. The defendant has therefore attempted by his first plea to put in issue the original cause of action, and by the second, the representative character of the plaintiffs. The first plea virtually con*580cedes the character in which the plaintiffs sue, and the second, the…
2Cases cited1 opinion
- Childress v. EmorySupreme Court of the United States · 1823
3Cited by15 opinions
- People v. RathbunNew York Supreme Court · 1839
- Ewen v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1875
- In re the Estate of McCaffertyNew York Surrogate's Court · 1933
- New England Structural Co. v. Everett Distilling Co.Massachusetts Supreme Judicial Court · 1905
- Smith v. New York Central RailroadAppellate Division of the Supreme Court of the State of New York · 1918
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