Macomb & Bouck v. Wilber
New York Supreme Court
THIS was an action of covenant, upon articles of agreement, made the 22d of September, 1813, between the defendant and a number of other persons, of the first part, and the plaintiffs, of the second part.
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THIS was an action of covenant, upon articles of agreement, made the 22d of September, 1813, between the defendant and a number of other persons, of the first part, and the plaintiffs, of the second part. The agreement recited, that the parties thereto of the first part, severally admitted and acknowledged, that the parties of the second part had the legal title to the several lots of land in the patent granted to Johannes Lawyer, Jacob Zimmer, and others, commonly called Lawyer and Zimmer’s patent, situate in the county, of Schoharie, occupied or claimed by the parties of the first part,…
1Opinion of the CourtPlatt, J.
The plaintiffs move to set aside the verdict, and for judgment in *230favour of the plaintiffs, non obstante veredicto ; on the ground that the issue was immaterial.
The rule of law as laid down by Lord Mansfield, (Rex v. Philips, 1 Burrow, 301.) in regard to an immaterial issue, and a verdict upon it, “ is, that when the finding upon it does not determine the right, the Court ought to award a repleader j unless it appear from the whole record, that no manner of pleading the matter could have availed.”
A judgment, therefore, non obstante veredicto, is always upon the merits ; and a repleader upon…
2Cited by4 opinions
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- Young v. ShookSupreme Court of Pennsylvania · 1833
- Proctor v. ThompsonNew York Supreme Court · 1882