Doty v. Sturdevant

A replication to a plea that the note declared on had been attached as the property of the original payee, is bad, if it aver that his interest was divested at the time of the attachment, and it do not aver that it was vested in the plaintiff.

In Error. Error to the Common Pleas of Warren county. This was an appeal by the plaintiff from the judgment of a justice of the peace, in which he filed a statement on the following promissory note, which had leen transferred to him ly the payee: “For value received, I promise to pay H. R. Bates, or bearer, fifty-five dollars, to be paid in hay, to be delivered at H. R. Bates’ barn in Youngsville, by the first of February next. Price per ton six dollar’s. “ William Sturdevant.” “ Brokenstraw, July 27, 1843.” To which the defendant put in a plea in abatement, setting forth in substance, “ that before the issuing of the said writ in this suit, to wit, on the 7th day of August, a. d. 1843, a certain writ was issued out of the Court of Common Pleas, of the county of Warren, called an alias attachment of execution with scire facias, and notice to him, the said William Sturdevant, by which said writ the sheriff of said county was commanded to attach Henry R. Bates by all and singular his goods and chattels, rights and credits, in whose hands and possession soever the same might be found in his bailiwick. That the proceedings commenced as aforesaid by the said alias attachment of execution were pending before and at the time of the commencement of this suit, and from thence and hitherto, and still are pending in the said Court of Common Pleas of said county of Warren. And the said defendant further in fact says, that all and every of the causes and rights of action contained and specified in the writ, and declaration in this suit, are the said identical causes and rights of action existing at the time of the issuing and serving the said alias attachment of execution as above mentioned, and no other, and this the said defendant is ready to verify; whereupon he prays judgment of the said writ in this suit, and that the same may be quashed.” To this plea in abatement the plaintiff replied that he, the said plaintiff, “by reason of anything by the said defendant in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against the said defendant, because he, the said plaintiff, says, that at the time of the serving of the writ of alias attachment of execution in the said plea of abatement mentioned, upon Henry R. Bates, the payer of the note, originally, upon which this suit is founded, and upon William Sturdevant, the defendant herein, the said Henry R. Bates, at the time of the said service of the said writ, had no interest in the said note, but that the interest of the said Bates, at the time aforesaid, was totally and entirely divested.”. To which replication the defendant demurred, and joinder, &c. The court rendered judgment for the defendant, on the demurrer, which was assigned for error here.