Amory v. M'Gregor

12 Johns. 287 | N.Y. Sup. Ct. | 1815

Per Curiam.

This case comes before .the court on a general demurrer to the .declaration. And the ground.upon which it has been attempted to support the demurrer is, that the day Jaid.in .the declaration is during the existence.of hostilities be? tween this country and Great Britain; and that,.of course, the contract set forth in the declaration is void,, being contrary to . the laws of the United States., _ Without giving any opinion upon the validity of the-contrast, , if, to point .of fact, it was; made at the time laid- in the declaration, it is sufficient, iii this ease, to say, .that the d;ay beirigffimmatetial, the plaintiff would not be-obliged to prove the contract to have been, made bp the day' laid. Nothing.appears uponthe fac.e .of the.declaration, show^ :lng the contract to be illegal or void. And it is a general rule, that a party canñóTdemnr, unless the objection appears on the face of the pleadings. And so are all the cases referred to, and relied upon, by the defendant’s counsel. In Cheetham v. Lewis, (3 Johns. Rep. 42.) and Waring v. Yates, (10 Johns. Rep. 119.) it appears, from the declaration, when the suit was commenced, and that the cause of action arose afterwards. The plaintiff must, therefore, have judgment, with leave to the defendant, however, to plead to the declaration.

Judgment for the plaintiff.