Harkness v. Harkness
New York Supreme Court
Demurrer to plea in abatement puis darrein continuance. The action was brought by Elizabeth Harkness for slander. The defendant pleaded the general issue, and gave notice of special matter. Afterwards a plea in abatement was interposed, alleging that, since the last continuance, the plaintiff had married. This plea concluded by praying judgment of the writ.
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Demurrer to plea in abatement puis darrein continuance. The action was brought by Elizabeth Harkness for slander. The defendant pleaded the general issue, and gave notice of special matter. Afterwards a plea in abatement was interposed, alleging that, since the last continuance, the plaintiff had married. This plea concluded by praying judgment of the writ. The plaintiff demurred, assigning for cause that the plea was defective in its conclusion, and the defendant joined in demurrer. The memorandum in the demurrer book stated that, on &c. before &c. at &c. the plaintiff brought into the…
1Opinion of the Court
By the Court, Cowen, J.
This suit does not appear, by the demurrer book, to have been commenced by declaration pursuant to the statute. The memorandum is in the ordinary form, that the plaintiff brings into court her bill. The plea prays judgment of the writ only. This is a bad conclusion. The very point came up in Attwood v. Davis, (1 Barn. & Ald. 172.) The plea prayed judgment of the writ and declaration. Lord Ellenborough, C. J., said: “ There must be judgment of respon*214deas ouster, unless bill and writ be the same thingand judgment was given for the plaintiff, on the sole ground that the…
2Cases cited3 opinions
- Rayner & Hope v. DyettNew York Supreme Court · 1829
- Shaw v. Butcher & HarrisNew York Supreme Court · 1838
- Haywood's Executors v. ChestneyNew York Supreme Court · 1835