Cronly v. Brown
New York Supreme Court
In an action of replevin commenced by writ, the plaintiff declared for a quantity of household furniture. The defendant put in a plea, in which he craved oyer of the writ and set it forth, and as set forth by him, it appeared that the officer was commanded to replévy as well a barouche waggon and harness as household furniture; and then, after setting forth the writ, the defendant pleaded the variance between the writ and declaration in abatement.
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In an action of replevin commenced by writ, the plaintiff declared for a quantity of household furniture. The defendant put in a plea, in which he craved oyer of the writ and set it forth, and as set forth by him, it appeared that the officer was commanded to replévy as well a barouche waggon and harness as household furniture; and then, after setting forth the writ, the defendant pleaded the variance between the writ and declaration in abatement. The plaintiff moved to strike out the plea. The defendant, in opposition to the motion, read a certified copy of the writ, in which the barouche…
1Opinion of the Court
By the Court,
Sutherland, J.
A variance between the writ and declaration is now pleadable in abatement; such variance could in no case be pleaded without craving oyer of the writ, in respect to which the practice is settled that the defendant cannot have such oyer. 1 Chitty’s Pl. 438, 9, and the cases, there cited.
Motion granted.
2Cited by2 opinions
- People v. WhiteNew York Supreme Court · 1851
- Reeder v. MooreMichigan Supreme Court · 1893