Wolcott v. McFarlan

New York Supreme Court

Wolcott v. McFarlan

6 Hill & Den. 227

DecidedDecember 15, 1843

StatusPublished

This text of 6 Hill & Den. 227 (Wolcott v. McFarlan) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wolcott v. McFarlan, 6 Hill & Den. 227 (N.Y. Super. Ct. 1843).

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Opinion

By the Court, Bronson, J.

There have been two slips in this case; one by the plaintiff’s attorney in not commencing the suit at once in pursuance of instructions; and the other by the defendant’s attorney in not pleading the statute in pursuance of his instructions. This puts the parties just where they would have stood had there been no lache on either side. But independently of that fact, this motion cannot be granted. The statute of limitations is a defence which is not favored, and if the party intends to rely on it, he must plead it in the first instance. He will not be allowed to amend by adding such a plea. The cases are cited in Lovett v. Cowman, (ante, p. 223,) which has just been decided.

Motion denied.

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By the Court, Bronson, J.

There have been two slips in this case; one by the plaintiff’s attorney in not commencing the suit at once in pursuance of instructions; and the other by the defendant’s attorney in not pleading the statute in pursuance of his instructions. This puts the parties just where they would have stood had there been no lache on either side. But independently of that fact, this motion cannot be granted. The statute of limitations is a defence which is not favored, and if the party intends to rely on it, he must plead it in the first instance. He will not be allowed to amend by adding such a plea. The cases are cited in Lovett v. Cowman, (ante, p. 223,) which has just been decided.

Motion denied.

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Bluebook (online)

6 Hill & Den. 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolcott-v-mcfarlan-nysupct-1843.