Nichols v. Nichols
New York Supreme Court
Demurrer to plea in abatement. The plaintiff declared in assumpsit, stating his cause of action to have arisen in September, 1830, and entitling his declaration g enerally as of July term preceding.
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Demurrer to plea in abatement. The plaintiff declared in assumpsit, stating his cause of action to have arisen in September, 1830, and entitling his declaration g enerally as of July term preceding. The defendant demurred, assigning for cause specially, that the suit was commenced before cause of action arose- it js then stated in the demurrer book, that at the Octdberterm, 1830, the plaintiff obtained leave to amend, and that accordingly brought into court an amended declaration, entitled as of the last mentioned term, which is set forth. To this declaration the defendant pleaded in…
1Opinion of the Court
By the Court,
Nelson, J.
In Paul v. Graves, 5 Wend. 76, the court passed upon the subject of entitling a declaration, when the suit is commenced by the filing and service of a declaration, and the cause of action arises in vacation. The practice there settled shews that the declaration in this case is erroneously entitled. But there is no principle, or reason, or analogy, upon which this error can be taken advantage of by plea; it is matter which belongs exclusively to the practice of the court, and as such, under its control. It is a well settled and salutary rule, and should be rigidly…
2Cases cited1 opinion
- Paul v. GravesNew York Supreme Court · 1830
3Cited by3 opinions
- Parke v. Heath & M'CotterNew York Supreme Court · 1836
- Barth v. MarcuseCircuit Court of the 17th Circuit of Michigan · 1881
- People ex rel. Fishers v. New-York Common PleasNew York Supreme Court · 1836