Seymour v. Billings
New York Supreme Court
This was an action of replevin. The declaration contained but one count, and in it the plaintiff charged the defendant with taking 25,000 feet of white pine boards. The defendant pleaded non cepit.
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This was an action of replevin. The declaration contained but one count, and in it the plaintiff charged the defendant with taking 25,000 feet of white pine boards. The defendant pleaded non cepit. On the trial of the cause, it appeared that a portion of the boards taken by the defendant were old and the residue new; and the jury found a verdict in these words : “ The jury say they find that the property in the new boards, taken by the defendant on the execution and replevied by the plaintiff, is in the defendant, to wit, 16,600 feet, and assess damages in favor of the defendant for the value…
1Opinion of the Court
*286 By the Court,
Sdtheeland, J.
It is well settled, as a general rule, that upon a plea of non cepit merely, in an action of replevin and a verdict for the defendant, he is not entitled to judgment pro retorno habendo. The plea involves merely the fact of taking and the place, and not the title to the property ; it in fact impliedly disclaims title, and if the defendant has any claim or right to a return of the goods, he must add a special plea by way of avowry or cognizance, in order to entitle him to a judgment for a return. 1 Saund. 347, note 1. 1 Chitty, 490. 4 Wendell, 217. But by the…
2Cases cited1 opinion
- Wright v. WilliamsNew York Supreme Court · 1829
3Cited by19 opinions
- Bull v. KetchumNew York Supreme Court · 1846
- Vinal v. SpoffordMassachusetts Supreme Judicial Court · 1885
- Postell v. ChapmanSupreme Court of Georgia · 1888
- Lanyon v. WoodwardWisconsin Supreme Court · 1886
- Newell Universal Mill Co. v. MuxlowNew York Supreme Court · 1889
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