Livingston v. Ostrander

9 Wend. 306

Opinion

By the Court,

Savage, Ch. J.

The replications in this case do not purport to be replications of a writ sued out to save the statute. In such cases, the replication states a writ issued within six years after the promise made or action accrued, and shews the first writ returned, and regular continuances down to the process upon which the defendant was arrested; but these are no more than common replications, and what is said about the suit being commenced by capias issued on the 26th September, 1825, is mere surplusage. Had that been omitted, the replications would have been perfect; no issue is tendered or can be taken upon the commencement of the suit, nor is it at all material, for the plaintiff relies on a subsequent promise made as he says within six years before the commencement of the suit This averment was unnecessary and improper, if the suing out a writ within six years had been relied on. In such cases no new promise is pretended. Here the plaintiff relies on a new promise; and when his suit was commenced, is matter of evidence. The replications, though informal, are substantially good. See 3 Wendell, 473. 5 id. 63.

Judgment for plaintiff, with leave to defendant to rejoin on terms.