Gardner v. Campbell
New York Supreme Court
THIS was an action of replevin, for taking certain goods and chattels of the plaintiff. The defendant pleaded to the declaration, which was in the ordinary form, 1. Non Cepit; 2. An avowry, setting forth that the defendant, on the 31st of December, 1817, was under sheriff of the county of Cortlandt, on which day a fi.fa. directed to the Sheriff of Cortlandt was issued out of this court against the plaintiff, at the suit of Aaron Benedict, for 3,132 dollars, debt, and 14…
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THIS was an action of replevin, for taking certain goods and chattels of the plaintiff. The defendant pleaded to the declaration, which was in the ordinary form, 1. Non Cepit; 2. An avowry, setting forth that the defendant, on the 31st of December, 1817, was under sheriff of the county of Cortlandt, on which day a fi.fa. directed to the Sheriff of Cortlandt was issued out of this court against the plaintiff, at the suit of Aaron Benedict, for 3,132 dollars, debt, and 14 dollars and 43 cents, damages and costs : that the writ was delivered to the defendant to be executed, who thereupon, and…
1Opinion of the CourtSpencer, J.
The first objection to the pleas, is, that they admit the original caption to be lawful, and that when that is the case, replevin does not lie.
In the case of Hopkins v. Hopkins, (10 Johns. Rep. 372.) this court adopted the well known and ancient principle, that when a person acts under an authority or license given by the law, and abuses it, he shall be deemed a trespasser ah initia; but the action is grounded' on a tortious taking; and The Six Carpenters' case, (8 Co. 146.) recognises a distinction between the actual and positive abuse of a thing taken originally by authority of the law, and…
2Cited by20 opinions
- Ronge v. DawsonWisconsin Supreme Court · 1859
- Henderson v. MarxSupreme Court of Alabama · 1876
- Ross v. PhilbrickSupreme Judicial Court of Maine · 1854
- Auto Brokerage Co. v. UllrichSupreme Court of New Jersey · 1926
- Winter v. PetersonSupreme Court of New Jersey · 1854
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