Kimball v. Adams
Superior Court of New Hampshire
Replevin for three cows and one heifer. The declaration alleged that the defendant, on the 28th July, 1823, at L. in said county, in a certain close adjoining the defendants dwelling house in L. took the cattle- &c. and unjustly detained them against sureties and pledges, &c. The defendant avowed the taking and impounding the cattle, as a distress for damage done by the same cattle, in the said close, which he alleged to be his soil and freehold.
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Replevin for three cows and one heifer. The declaration alleged that the defendant, on the 28th July, 1823, at L. in said county, in a certain close adjoining the defendants dwelling house in L. took the cattle- &c. and unjustly detained them against sureties and pledges, &c. The defendant avowed the taking and impounding the cattle, as a distress for damage done by the same cattle, in the said close, which he alleged to be his soil and freehold. The plaintiff pleaded in bar to the avowry— 1st, That the defendant, on 28th July, 1823, impounded said cattle in the common pound, in L., and there…
1Opinion of the Court
By the court.
It is objected in this case that the pleas in bar of the'pvowry are departures from the declaration. Bui it seems to us that this objection has no foundation. The plaintiff complains, in his declaration, not only of the taking, but of the illegal detention of his cattle ; and the matter of the pleas in bar of the avowry, if it amount to any thing, goes to shew an illegal detention of the cattle ; and, in that respect, fortifies the declaration and is not a departure. 2 Chilly's Pleadings, 639.
*183But there are other questions arising upon these pleas. It Is now well settled, that a…
2Cases cited3 opinions
- President of the Portland Bank v. StubbsMassachusetts Supreme Judicial Court · 1810
- Gardner v. CampbellNew York Supreme Court · 1818
- Brown v. SmithSuperior Court of New Hampshire · 1817