Sterns v. Patterson
New York Supreme Court
THIS was an action of assumpsit. The declaration contain-ed six counts. The first count stated, that on the 1st of 1813, at Quebec, to wit, at Plattsburg, in the county of the defendants were indebted to the insolvents for divers quantities of timber, spars, plank, and boards, sold and delivered to them by the insolvents. The second count was on a meruit for the same, and the third count for goods sold and delivered generally: then followed other common counts in sumpsit.
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THIS was an action of assumpsit. The declaration contain-ed six counts. The first count stated, that on the 1st of 1813, at Quebec, to wit, at Plattsburg, in the county of the defendants were indebted to the insolvents for divers quantities of timber, spars, plank, and boards, sold and delivered to them by the insolvents. The second count was on a meruit for the same, and the third count for goods sold and delivered generally: then followed other common counts in sumpsit. The defendants pleaded three pleas, of which it is only necessary to notice the second, which was in answer to the three…
1Opinion of the CourtSpencer, J.
The plaintiff has demurred generally to the defendant’s rejoinder to his replication to the second plea; and the questions are, whether the rejoinder is a departure from the plea; and if it be, whether, on a general demurrer, the objection is fatal ? There can be no doubt that the matters of defence set up in the plea, and the rejoinder are altogether distinct and variant. The plea sets up an unlawful trading with the enemy, flagrante bello, by the persons whom the plaintiffs represent, and who were citizens of the United States, and that the contract which the plaintiffs attempt *134to enforce…
2Cited by5 opinions
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