Hogan v. Cuyler
New York Supreme Court
On error to the C. P. of Schenectady. The action in that court was assumpsit by Cuyler against Hogan, on three several promissory notes, set forth in the declaration, which also included the general money counts. The placita of the record was of the 3d Tuesday of January, 1825. The three notes were all declared on in one count.
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On error to the C. P. of Schenectady. The action in that court was assumpsit by Cuyler against Hogan, on three several promissory notes, set forth in the declaration, which also included the general money counts. The placita of the record was of the 3d Tuesday of January, 1825. The three notes were all declared on in one count. The cause was tried on the 20th of September, 1825. At the trial, upon the general issue, the plaintiff below claimed to recover on a note declared on, giving by the defendant *below, and payable to one Van Wormer, or bearer, 6 months after the date, which was May 5th,…
1Opinion of the Court
* Curia, per Sutherland, J.
The court below erred in permitting the note to be given in evidence. They were clearly wrong in deciding the maker was not entitled to the three days of grace. (Chit, on Bills, Phil. ed. 1821, p. 420, 1, and notes. 4 T. R. 148, 151; 6 T. R. 123; 2 Cowen, 766.)
It is perfectly well settled, that the-issuing of the capias ad respondendum is, for all essential purposes, the commencement of the suit; and that the plaintiff’s cause of action must exist at that time. (3 John. Cas. 145; 1 Cain. 69, 72; 3 Cain. 133 ; 2 John. Rep. 346 ; 3 John. Rep. 42; 10 John. Rep. 119.)
*205The…
2Cases cited4 opinions
- Bird v. CaritatNew York Supreme Court · 1807
- Lowry v. LawrenceNew York Supreme Court · 1803
- Cheetham v. LewisNew York Supreme Court · 1808
- Waring v. YatesNew York Supreme Court · 1813
3Cited by4 opinions
- California Annual Conference of the Methodist Episcopal Church v. SeitzCalifornia Supreme Court · 1887
- Cross v. BarberSupreme Court of Rhode Island · 1888
- Goodpaster v. VorisSupreme Court of Iowa · 1859
- Curry v. ShraderSupreme Court of Alabama · 1851