Merrill v. Near
New York Supreme Court
Error from the Madison common pleas. Merrill sued Near and Forbes in a justice’s court, and declared in these words: “The plaintiff declares against the defendants for two chains, one yoke of oxen, one yoke of stags, one yoke of steers and one ox yoke, bows and irons, to his damage $50.” The defendants pleaded not guilty.
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Error from the Madison common pleas. Merrill sued Near and Forbes in a justice’s court, and declared in these words: “The plaintiff declares against the defendants for two chains, one yoke of oxen, one yoke of stags, one yoke of steers and one ox yoke, bows and irons, to his damage $50.” The defendants pleaded not guilty. The justice gave judgment for the plaintiff, and the defendants appealed to the Madison common pleas ; where the cause was again tried on the above pleadings, and a verdict found for the defendants. A suggestion appears on the record that the suit was for acts done by Near…
1Opinion of the Court
By the Court,
Sutherland, J.
We are of opinion that the action was trespass, and that the plea was joint, because, although those facts do not conclusively appear upon the face of the pleadings, yet fairly, and we think necessarily, they are to be inferred from the whole record.
Forbes did not act in aid or assistance or by commandment of the constable, within the meaning of the act for more easy pleading in certain cases. He was not called upon by *239the constable to assist him. His interference was voluntary. He accompanied the constable and pointed out the property in question, and directed him…
2Cases cited1 opinion
- Schermerhorn v. TrippNew York Supreme Court · 1804
3Cited by5 opinions
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- Deitsch v. WigginsSupreme Court of Colorado · 1871
- Philips v. PetersNew York Supreme Court · 1855