Hopkins v. Hopkins
New York Supreme Court
THIS was an action of replevin. It was commenced by plaint, in the Westchester court of common pleas, and removed by ceriiorari into this court. The plaint and declaration, in the court below, was for taking and detaining, by the defendant, 24 sheep <» and 11 lambs, the property of the plaintiff.
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THIS was an action of replevin. It was commenced by plaint, in the Westchester court of common pleas, and removed by ceriiorari into this court. The plaint and declaration, in the court below, was for taking and detaining, by the defendant, 24 sheep <» and 11 lambs, the property of the plaintiff. The defendant pleaded non cepit and three avowries: 1. An avowry of the taking in his own right, and as bailiff of James Hopkins, Thomas Hopkins, Job Cocks and his wife, and Mary Hopkins; because, the close in which, &c. was a close, &c. and was the soil and freehold of the defendant and the said…
1Opinion of the Court
Kent, Ch. J.
delivered the opinion of the court. The defendant avows the taking of the beasts damage-feascmt. He does this in three several avowries, and the last of them is clearly bad, because the avowant does not set forth his title, or allege the-estate of which he was seised. He avows only that he was lawfully possessed of the close, and this Was not enough by the rules of the common law; and as we have no statute altering the rule of pleading in this respect, the rule still prevails, and so it was declared by this court in Harrison v. M‘Intosh. (6 Johns. Rep. 380.)
The general replication…
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