Webbers' Executors v. Underhill
New York Supreme Court
Demurrer to scire facias. The scire facias in this case was sued out under the following circumstances : Webbers, as sheriff of the county of Westchester, by virtue of two executions against one Caleb Underhill, levied upon a quantity of personal property. Richard M. Underhill claimed to be the owner of the property, and sued out a writ of replevin. Webbers avowed the taking under the executions.
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Demurrer to scire facias. The scire facias in this case was sued out under the following circumstances : Webbers, as sheriff of the county of Westchester, by virtue of two executions against one Caleb Underhill, levied upon a quantity of personal property. Richard M. Underhill claimed to be the owner of the property, and sued out a writ of replevin. Webbers avowed the taking under the executions. The issue upon the avowry was tried, and the jury found a verdict as to part of the property for the plaintiff, and as to the residue for the defendant. The value of the part found for the plaintiff…
1Opinion of the Court
By the Court,
Cowen, J.
The main question presented by this demurrer, seems to be rendered difficult rather by the apparent conflict of positive authority than upon principle. In Keite v. Boyd, 16 Serg. & Rawle, 300, it was held, in so many words, that replevin does not abate by the death of the defendant even before plea or avowry. The defendant’s administrator was received, and himself pleaded to the action ; whereas, in Cutfield v. Corney, 2 Wils. 83, the death even of the plaintiff before avowry, (a much stronger case, we shall see, for continuing the action,) was held to work an abatement.…
2Cases cited5 opinions
- Penhallow v. Doane's AdministratorsSupreme Court of the United States · 1795
- Mellen v. BaldwinMassachusetts Supreme Judicial Court · 1808
- Keite v. BoydSupreme Court of Pennsylvania · 1827
- Daggett v. RobinsIndiana Supreme Court · 1831
- Thomas v. SmithMassachusetts Supreme Judicial Court · 1807
3Cited by18 opinions
- City of Indianola v. Gulf, Western Texas & Pacific RailwayTexas Supreme Court · 1882
- Livermore v. . BainbridgeNew York Court of Appeals · 1872
- Lahey v. BradyNew York Court of Common Pleas · 1865
- Burkle & Gebbard v. LuceNew York Court of Appeals · 1848
- Auerbach v. MarksNew York Court of Common Pleas · 1881
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