Gardenier v. Tubbs
New York Supreme Court
This was an action of trover, tried at the Montgomery circuit in May, 1838, before the Hon. John Willard, one of the circuit judges.
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This was an action of trover, tried at the Montgomery circuit in May, 1838, before the Hon. John Willard, one of the circuit judges. The suit was brought for the taking by the defendants of a yoke of oxen and other properly, purchased by the plaintiff at a sale of ihe property of one B. Whitcomb, on the eighth day of August, 1837. Whitcomb’s property was sold by virtue of an execution, in favor of the now plaintiff, for $189 93, and of two justices’ executions in favor of other persons, for $13 60. The property after the sale was left in the possession of Whitcomb, until the twenty-first day…
1Opinion of the Court
By the Court,
Cowen, J.
Several exceptions seem "to have been taken at the trial; but no bill of exceptions was *171sealed, and the matter comes before us on a case. The fraud was completely established, independent of Whitcomb’s deposition. The possession after sale, especially when fortified by the agreed trust, for Whitcomb’s benefit, as proved by Philip P. Graff, fully authorized the judge to direct a verdict for the defendants.
We must therefore deny a new trial, although we think that Whitcomb was interested, and that his deposition should have been excluded. As between him and the plaintiff,…
2Cases cited1 opinion
- Rea v. SmithNew York Supreme Court · 1838
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- King v. BaileySupreme Court of Missouri · 1843
- Denney v. Jenkens & GilchristDistrict Court, S.D. New York · 2004
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