Hanmer v. Wilsey
New York Supreme Court
Error from the Tompkins common pleas. Wilsey sued Hanmer in trespass. for taking a horse by virtue of an attachment illegally issued by a jus tice of the peace. Discovering the error in the proceeding, the constable, who had taken the horse by the direction of Hanmer from the stable of Wilsey, returned him to the stable and gave Wilsey notice of the fact, who said he would not receive the horse.
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Error from the Tompkins common pleas. Wilsey sued Hanmer in trespass. for taking a horse by virtue of an attachment illegally issued by a jus tice of the peace. Discovering the error in the proceeding, the constable, who had taken the horse by the direction of Hanmer from the stable of Wilsey, returned him to the stable and gave Wilsey notice of the fact, who said he would not receive the horse. Hanmer then obtained an attachment to be duly issued, by virtue of which the horse was taken; and judgment having been obtained in the suit thus commenced by attachment, the horse was sold by virtue…
1Opinion of the Court
By the Court,
Bronson, J.
It was sufficient, to maintain the action of trespass, that the plaintiff had the actual possession of the horse at the time of the illegal taking. The defendant did not attempt to justify under nor in any way to connect himself with Colgrove, the mortgagee of the horse; and it is no'answer in trespass de bonis asporlatis to show property out of the plaintiff in a stranger (Demick v. Chapman, 11 Johns, R. 132. Cook v. Howard, 13 id. 276). The evidence in relation to the mortgage was properly overruled.
Should the offer to return the horse have been considered by the…
2Cited by54 opinions
- Norman Birnbaum, B. Leonard Avery and Mary Rule MacMillen Plaintiffs v. United StatesCourt of Appeals for the Second Circuit · 1978
- Pease v. . SmithNew York Court of Appeals · 1875
- The People v. . Bank of North AmericaNew York Court of Appeals · 1879
- McCormick v. . Pennsylvania Central R.R. Co.New York Court of Appeals · 1872
- Kerr v. . MountNew York Court of Appeals · 1863
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