Thurston v. Kennett
Superior Court of New Hampshire
Replevin, for certain cattle alleged to have been illegally taken and impounded by the defendant. The defendant avowed the taking in the westerly half of lot number 50, in the south division of lots in Eaton, in this county; and set forth in his avowry that said westerly half was his soil and freehold ; that the cattle were there feeding upon his grass &c., and he impounded them as he well might; and concluded by praying judgment for his damages, &c., to be adjudged to him.
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Replevin, for certain cattle alleged to have been illegally taken and impounded by the defendant. The defendant avowed the taking in the westerly half of lot number 50, in the south division of lots in Eaton, in this county; and set forth in his avowry that said westerly half was his soil and freehold ; that the cattle were there feeding upon his grass &c., and he impounded them as he well might; and concluded by praying judgment for his damages, &c., to be adjudged to him. The plaintiff replied, that the soil and freehold was in one Josiah Thurston, by whose permission the cattle were in the…
1Opinion of the CourtEastman, J.
The plaintiff had the right to commence and close. This precise question, it is believed, was settled in Belknap v. Wendell, 1 Foster’s Rep. 175.
The general rule is, that the party who has the affirmative of the issue to maintain, shall begin and close. This rule, however, has been held subject to several limitations, and been more or less fluctuating both in England and America; so much so, that it would be difficult, perhaps, at the present time, to lay down any definite rules of practice as well sustained by authority, which could not be contradicted by other authority equally respectable.…
2Cases cited3 opinions
- Comstock v. Hadlyme Ecclesiastical SocietySupreme Court of Connecticut · 1830
- Southerin v. MendumSuperior Court of New Hampshire · 1831
- Gibson v. BaileySuperior Court of New Hampshire · 1838
3Cited by5 opinions
- Hardy v. MerrillSupreme Court of New Hampshire · 1875
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- In re Two Hundred Seven Thousand Five Hundred Twenty-Three Dollars & Forty-Six Cents in United States CurrencySupreme Court of New Hampshire · 1987
- Galvin v. EMC Mortgage Corp.District Court, D. New Hampshire · 2014
- Galvin, et al. v. EMC Mortgage Corporation, et alDistrict Court, D. New Hampshire · 2014