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Waring v. Yates

10 Johns. 119 Court N.Y. Sup. Ct. English

Contents

Majority

p. 119
Waring against Yates, gentleman, one of the attorneys, &c.
ALBANY,
Jan. 1813.

Headnote

Where a dec laration is eutitled general¿ingtei-m^nd the promise or cause of action is laid on qUe„^ "it*8*» yafjí °mJj.rer"
There should memorandum’ ln •s°el1 case, entitling the declaration of the day on which it is - filed.
THIS was an action of assumpsit. The bill against the de_ _ _ _ - . ni i • i • fendanty who was an attorney of this court, was hied m vacation, as of the first Monday of August term, 1832, and stated the promise or assumption of the defendant, to be on the 1st September, 1812. *
The defendant pleaded, that on the second day of September, 1812, he delivered to the plaintiff a bank check, which had been paid, and which the plaintiff accepted and received in full satisfaction, &c. The plaintiff replied that the defendant did not deliver to the plaintiff the check, &c. in full satisfaction and discharge, &c. The defendant demurred to the replication, and the plaintiff joined in demurrer.
J. Hamilton, in support of the demurrer,
contended, 1. That the replication was bad, as it traversed only the delivery of the check, and not the payment of .it in satisfaction, which was the material part of the plea. (1 Chitty, 573. Bac. Abr. Accord, C. Com. Dig. Accord, 6.)
2. That the declaration was bad, as it appeared from the record, that the bill was filed in August last, and the promise and request to pay were laid to have been made in September following. (1 Chitty’s Pl. 264. 268. 1 Term Rep. 116. 7 Term Rep. 474. 8 Term Rep. 679. 2 Saund. 291. n. 1.) .
Parker, contra,
insisted, that the second objection was matter of form, and could not be taken advantage of on a general demurrer ; and that the replication was good, according to the precedents. (1 Lill. Ent. 105, 106.)

The second objection is fatal. The declaration is bad on general demurrer.[1] It was so decided in Cheetham v. Lewis. ( 3 Johns. Rep. 42 .) There should have been a special memorandum in this case, entitling the declaration of the day on which it was filed, and subsequent to the time when the cause of action accrued. The defendant is entitled to judgment, but he has leave to withdraw the demurrer, and the plaintiff may amend on payment of costs.

Judgment for the defendant

* 1 Tida's Pr. 767. Chitty's Pl. 259. 263, 264, 265.