Doe v. Penfield
New York Supreme Court
THIS was an action of assumpsit brought to recover costs, adjudged against the defendant, in an action of ejectment, in Upper Canada. The declaration stated a judgment of the Court of K. B., in Upper Canada, against the defendant, for 315l. 17s. and Id. for damages which the plaintiff had sustained, as well by reason of a certain action of trespass and ejectment, as for his costs, &c. which judgment remained in full force, &c. by reason whereof, &c.
Read the full summary
THIS was an action of assumpsit brought to recover costs, adjudged against the defendant, in an action of ejectment, in Upper Canada. The declaration stated a judgment of the Court of K. B., in Upper Canada, against the defendant, for 315l. 17s. and Id. for damages which the plaintiff had sustained, as well by reason of a certain action of trespass and ejectment, as for his costs, &c. which judgment remained in full force, &c. by reason whereof, &c. The defendant pleaded in abatement, that there is not, nor at the time of filing the plaintiff’s declaration, was there any such person in being…
1Opinion of the CourtPlatt, J.
There is no doubt of the general rule, that if the plaintiff is not a real person, it maybe pleaded in abatement; arid the question is, whether the present case forms an exception to the rule ? I incline to think it does not; and the acknowledgment of counsel that it is a case offirst impression, and that no analagous case is to be found, affords strong presumption against this novel action. I think it best accords with the reason and policy of the law, that the fiction in the action of ejectment, should be confined,-in its operation and ■effect, to the local jurisdiction where it is adopted.…
2Cited by6 opinions
- Campbell v. GalbreathSupreme Court of Pennsylvania · 1836
- Oregonian Ry. Co. v. Oregon Ry. & Nav. Co.United States Circuit Court · 1884
- Campbell v. GalbreathSupreme Court of Pennsylvania · 1832
- Boston Type & Stereotype Foundry v. SpoonerSupreme Court of Vermont · 1833
- Northumberland County Bank v. EyerSupreme Court of Pennsylvania · 1869
1 more not listed; retrieve them via the Exa API.