Milliken v. Selye
New York Supreme Court
Demurrer to pleas. The action was replevin for a quantity of machinery and blacksmith’s tools, which, as the declaration alleged, the defendants took in a certain building called the Selye building in the city of Rochester, and detained, &c.
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Demurrer to pleas. The action was replevin for a quantity of machinery and blacksmith’s tools, which, as the declaration alleged, the defendants took in a certain building called the Selye building in the city of Rochester, and detained, &c. The defendant Selye avowed and the defendant Lunt acknowledged the taking of the goods as a distress for rent due to Selye as landlord from one Kenyon, upon the demise of the locus in quo,— a room in the Selye building, averring that $144 was in arrear or rent on the tenth day of August, 1843, upon which Selye delivered a distress warrant and affidavits…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The affidavit should not have been entitled, because when it was made there was no suit pending in court. As the affidavit purported to be made in a suit when there was none, the party could not be convicted of perjury for false swearing. In such cases the affidavit cannot be used—it is a nullity. The rule has been too long settled to be now shaken. (The King v. Pierson, Andrews, 313; Rex v. Jones, 1 Str. 704 ; Haight v. Turner, 2 John. 371 ; The People v. Tioga C. P. 1 Wend. 291; Hollis v. Brandon, 1 Bos. & Pull. 36 ; King v. Cole, 6 T. R. 640. And see Whitney v.…
2Cases cited3 opinions
- Benson v. MatsdorfNew York Supreme Court · 1807
- In re BronsonNew York Supreme Court · 1815
- People v. Tioga Common PleasNew York Supreme Court · 1828
3Cited by10 opinions
- Spalding v. SpaldingNew York Supreme Court · 1848
- City Bank v. LumleyNew York Court of Common Pleas · 1865
- Kulich v. KertacySupreme Court of New Jersey · 1934
- People v. ChrystalNew York Supreme Court · 1850
- Burleigh v. SartainSupreme Court of New Jersey · 1935
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