Nichols v. Nichols
New York Supreme Court
This is an action of replevin, which was commenced by writ, complaining that the defendant had taken and did unjustly detain a horse. The plaintiff declared for the taking of a horse.
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This is an action of replevin, which was commenced by writ, complaining that the defendant had taken and did unjustly detain a horse. The plaintiff declared for the taking of a horse. The defendant pleaded non cepit, and gave notice of special matter relied upon in defence ; but deeming his notice insufficient, he applied to the court and obtained leave to amend in certain particulars; the court at the same time giving leave to the plaintiff to amend his declaration by adding new counts. Both parties availed themselves of the permission granted. The defendant served his amended notice, and…
1Opinion of the Court
By the Court,
Savage Ch. J.
The writin this case is for the taking and unjust detention of a horse; manifestly a cause of action different and distinct from a mere detention. The remedy by replevin is given in both cases, but the form of the writ and of the declaration are different, according to the nature of the cause of action; and it cannot be permitted that where the writ is for one cause of action the plaintiff shall declare for another. The motion must be granted, with costs. Pardee and
2Cited by2 opinions
- Smith v. ClarkNew York Supreme Court · 1839
- Dawes v. GlasgowWisconsin Supreme Court · 1842