Legal Opinion

Wheaton v. . Fay

New York Court of Appeals

Decided June 8, 1875PublishedCited by 5 opinions

Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of New York, affirming a judgment in favor of plaintiff entered upon the report of a referee. This action was brought upon a bond given to discharge defendant Jiain from arrest in proceedings under the non-imprisonment act. The affidavit upon which such bond was issued, was as follows: “NEW YORK SUPERIOR COURT. Noah Wheaton v. John Kain.

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Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of New York, affirming a judgment in favor of plaintiff entered upon the report of a referee. This action was brought upon a bond given to discharge defendant Jiain from arrest in proceedings under the non-imprisonment act. The affidavit upon which such bond was issued, was as follows: “NEW YORK SUPERIOR COURT. Noah Wheaton v. John Kain. Citt and County of New York, ss. : Noah Wheaton, plaintiff herein, being duly sworn, deposes and says, that, on the 21st day of November, 1870, judgment was…

1Opinion of the Court

Folger, J. *

The question which stands at the threshold of the case is, whether the judge, who took the bond, had acquired jurisdiction. And this depends upon the sufficiency, to confer jurisdiction, of the affidavit upon which the warrant was issued. The allegations of it were not in any way denied, questioned or explained, though Kain, when brought before the judge, had the right to do so. He offered neither his own affidavit, nor the testimony of any other person, in contradiction of the allegations of his former possession and title of property, nor in confirmation of his previous…

2Cases cited2 opinions

  1. Cobb v. . HarmonNew York Court of Appeals · 1861
  2. Mosher v. People ex rel. ChildNew York Supreme Court · 1849

3Cited by5 opinions

  1. Chicago, St. P., M. & O. Ry. Co. v. BelliwithCourt of Appeals for the Eighth Circuit · 1897
  2. Sanger v. DunWisconsin Supreme Court · 1879
  3. Snider v. Greer-Wilkinson Lumber Co.Indiana Court of Appeals · 1912
  4. Townsend v. NebenzahlNew York Supreme Court · 1879
  5. Davenport v. HolbertNew York Supreme Court · 1928

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