Mathewson v. Weller
New York Supreme Court
Demurrer to a surrejoinder. The declaration was in trespass for taking a pair of horses. Plea, justification of the seizure under-an execution issued by a justice of the peace on a judgment against the plaintiff in favor of Weller, Haynes and Johnson, three of the defendants, the other defendant being a constable.
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Demurrer to a surrejoinder. The declaration was in trespass for taking a pair of horses. Plea, justification of the seizure under-an execution issued by a justice of the peace on a judgment against the plaintiff in favor of Weller, Haynes and Johnson, three of the defendants, the other defendant being a constable. It states the recovery of the judgment on the 29th day of August, 1842, without stating any facts to shew, or making any averment that the justice had jurisdiction. Replication, that the plaintiff was a householder, and that the horses were his necessary team, and were of less value…
1Opinion of the Court
By the Court, Jewett, J.
It is not denied that the plea is bad in substance; and it is well settled that the judgment must be against the party who has committed the first substantial fault in pleading. (Mercein v. Smith, 2 Hill, 210.) If this were otherwise the defendant would prevail, because the surrejoin*54der shews that the debt for which the judgment was rendered was contracted prior to the passage of the act of 1842, and therefore, according to the case, of Quackenbush v. Danks, (1 Denio, 128,) that act has no application to the case.
The more material question which was attempted to be…
2Cases cited1 opinion
- Quackenbush v. DanksCourt for the Trial of Impeachments and Correction of Errors · 1845
3Cited by8 opinions
- Aurora City v. WestSupreme Court of the United States · 1869
- Danks v. . QuackenbushNew York Court of Appeals · 1848
- Cole v. StevensNew York Supreme Court · 1851
- Corning v. RooseveltNew York Supreme Court · 1890
- Vedder v. AlkenbrackNew York Supreme Court · 1848
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