Thayer v. Turner
Massachusetts Supreme Judicial Court
This was an action of replevin, to try the question of property in a horse. Trial in the court of common pleas, before Ward, J. whose report thereof was as follows : It was conceded and agreed that, on the 26th of June 1843, the plaintiff exchanged the horse in question for the defendant’s colt, and that the exchange was made under such .a false representation or warranty, by the defendant, as to the kindness of the colt, that the plaintiff had a right to rescind the…
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This was an action of replevin, to try the question of property in a horse. Trial in the court of common pleas, before Ward, J. whose report thereof was as follows : It was conceded and agreed that, on the 26th of June 1843, the plaintiff exchanged the horse in question for the defendant’s colt, and that the exchange was made under such .a false representation or warranty, by the defendant, as to the kindness of the colt, that the plaintiff had a right to rescind the contract of exchange ; and one question was, whether the plaintiff had so rescinded the contract, or had so returned the colt…
1Opinion of the CourtShaw, C. J.
Replevin for a horse, on a claim by the plaintiff to rescind a contract of exchange, previously made with the defendant, on the ground that the plaintiff had been deceived by false representations of the defendant as to the character of a colt given in exchange. The question is, whether, upon the facts reported, the plaintiff can maintain the action of replevin.
In order to maintain replevin, it "s clear that the plaintiff must *552prove either a tortious taking or a tortious detention of the property replevied. Page v. Crosby, 24 Pick. 215. A sale, made under false representations, is not ipso…
2Cases cited8 opinions
- Norris v. DoniphanCourt of Appeals of Kentucky · 1863
- Thornton v. WynnSupreme Court of the United States · 1827
- Kimball v. CunninghamMassachusetts Supreme Judicial Court · 1808
- Conner v. HendersonMassachusetts Supreme Judicial Court · 1818
- Borden v. BordenMassachusetts Supreme Judicial Court · 1809
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