Davis v. Adams
New York Supreme Court
Assumpsit on two promissory notes, made at Alexandria, in the district of Columbia. The defendant had pleaded the same plea .as he had done in the cause of Whittimore v. Adams0 (2 Cowen’s Hep. 626.) At first, the plaintiff demurred an^ the defendant joined in demurrer; but on seeing the report of the first case, the plaintiff at the last term, byS.
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Assumpsit on two promissory notes, made at Alexandria, in the district of Columbia. The defendant had pleaded the same plea .as he had done in the cause of Whittimore v. Adams0 (2 Cowen’s Hep. 626.) At first, the plaintiff demurred an^ the defendant joined in demurrer; but on seeing the report of the first case, the plaintiff at the last term, byS. M. Hopkins, his counsel, moved to set aside the plea as frivolens, which I opposed for the defendant, and the motion was denied by the Court; but they allowed Hopkins to withdraw his demurrer, which he did ; and thereupon the plaintiff treated the…
1Opinion of the Court
Curia.
The .plaintiff should either have retained his de'tirrerj and gone to argument upon the calendar, or confessed the defendant’s plea, taking a judgment to he levied °f his goods and chattels; or have taken -issue, .suffered a verdict for the defendant, and then moved for judgment non ' obstante veredicto, as was done in Whittimore v. Adams. The defendant ds;entitled to retain his plea upon the record, and have it passed upon by the Court, with a view to his writ of error. Therule -for judgment must he set aside with costs ; but under the special circumstances of this case, the plaintiff…
2Cited by1 opinion
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