Young v. Rummell
New York Supreme Court
Error to Erie C. P. Rummell sued Young before a justice, and declared in assumpsit. Plea, the general issue. The plaintiff recovered, and the defendant appealed to the common pleas. On the trial in that court, the defendant offered to prove that the plaintiff had before brought a suit against the defendant for the same cause of action, and proceeded therein to a trial and judgment.
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Error to Erie C. P. Rummell sued Young before a justice, and declared in assumpsit. Plea, the general issue. The plaintiff recovered, and the defendant appealed to the common pleas. On the trial in that court, the defendant offered to prove that the plaintiff had before brought a suit against the defendant for the same cause of action, and proceeded therein to a trial and judgment. The court rejected the evidence, on the ground that the former recovery should have, been pleaded, and was not admissible under the general issue. The defendant excepted, and now brings error— judgment having been…
1Opinion of the Court
By the Court,
Bronson, J.
Although in point of form, the plea of non-assumpsit puts nothing in issue but the making of the promise, it has been long settled that nearly every defence is admissible under that plea which shows that there was not a subsisting cause of action at the time the suit was brought. Tender and set-off, which must be pleaded specially, are not exceptions to the rule, because those defences admit a good cause of action. There are some defences arising by operation of law, as a bankrupt or insolvent’s discharge, and the statute of limitations, which are exceptions to the…
2Cases cited5 opinions
- Sill v. RoodNew York Supreme Court · 1818
- Wilt & Green v. OgdenNew York Supreme Court · 1816
- Dexter v. HazenNew York Supreme Court · 1813
- Clark v. YaleNew York Supreme Court · 1834
- Fowler v. HaitNew York Supreme Court · 1813