Carey v. Same

Decided August 15, 1823

New York Supreme Court · decided 1823-08-15

In this case, an inquest was taken, and the demurrer to ^ie replication was served, under the same circumstances as in the last. The only difference was in the nature of the pleadings. The declaration was in assumpsit, including the usual money counts. Plea : 1. Non assumpsit ; 2. Non assumpsit infra sex annos ; 3. Non accrevit infra sex annos.

Cited by 1 later decisions — most recently July 1827

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Decided 1823-08-15

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Curia.

¶1The replication is somewhat informal, but there, is not the least difficulty in seeing which of the pleas it intends to answer.(a) The special demurrer is, therefore, frivolous, and must.be disregarded, as in fraud of the 9th rule of April term, 1798. But as there is an affidavit of merits, we grant the motion, on the usual terms.

¶2Rule accordingly.

¶3Otherwise, where, in covenant, the defendant pleaded, 1. and 2. performance ; 3. concord; and the plaintiff demurred generally, and said, “ the plea aforesaid is insufficient, &c.” for it is uncertain to which of the three pleas it shall be referred ; so that, as to two pleas pleaded, the defendant remains unanswered. (Middleton v. Cheeseman, Yelv. 65.)