Keeler v. Bartine
New York Supreme Court
Error from the superior court of the city of New-York. Bartine brought an action of assumpsit against Keeler, in September, 1826, and declared against him as the endorser of a promissory note, made by a firm under the name of Seaman & Cooper, for $950, bearing date 19th September, 1814, payable to the defendant or order, 60 days after date.
Read the full summary
Error from the superior court of the city of New-York. Bartine brought an action of assumpsit against Keeler, in September, 1826, and declared against him as the endorser of a promissory note, made by a firm under the name of Seaman & Cooper, for $950, bearing date 19th September, 1814, payable to the defendant or order, 60 days after date. The declaration also contained a count for money lent, paid, laid out, &c. and a third count on a insimul computassent. ‘The defendant pleaded, 1. Non-assumpsit: 2. Actio non accrevit, as to first count; 3. Non-assumpsit, infra, &c. as to second and third…
1Opinion of the Court
By the Court,
Nelson, J.
The effect of entering a nolle prosequi as to the first count, is not so extensive in its bearing upon the rights of the parties as is supposed by the counsel for the plaintiff in error. The only operation of it, is to strike from the record that count and all the issues joined upon it; the residue of the issues remaining to be tried, the same as if no other had been formed. It will not be doubted that the plaintiff was not originally bound to declare as he did in the first count upon the note, and hence the propriety of allowing him to abandon the count, on paying the…
2Cases cited2 opinions
- Mechanics' Bank of N. Y. v. GriswoldNew York Supreme Court · 1831
- Hughes v. MooreSupreme Court of the United States · 1812
3Cited by5 opinions
- Tebbetts & Pearce v. DowdNew York Supreme Court · 1840
- Farmers' Bank of Amsterdam v. BlairNew York Supreme Court · 1865
- Cyrus W. Field & Co. v. New Orleans Delta Newspaper Co.Supreme Court of Louisiana · 1869
- Kimball v. BellowsSuperior Court of New Hampshire · 1842
- Larry v. HerrickSupreme Court of New Hampshire · 1876