Pierce v. Van Dyke
New York Supreme Court
Replevin in the detinet, tried at the Greene circuit in November, 1841, before Cushman, C. Judge. The plaintiff sought to recover a promissory note for $130,13, made by Kennedy & Sylvester on the 22d of December, 1840, payable to the intestate or order thirty days after date. Plea non detinet. The case was this: The intestate died about the first of May, 1841, the note then being in his possession, and not having been endorsed.
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Replevin in the detinet, tried at the Greene circuit in November, 1841, before Cushman, C. Judge. The plaintiff sought to recover a promissory note for $130,13, made by Kennedy & Sylvester on the 22d of December, 1840, payable to the intestate or order thirty days after date. Plea non detinet. The case was this: The intestate died about the first of May, 1841, the note then being in his possession, and not having been endorsed. A few minutes after he expired, Hannah Sharp, who had recently come from the poor house, and who had lived with the intestate for the last eight or ten days of his…
1Opinion of the Court
By the Court, Bronson, J.
The demand of the note was • of no avail, for the reason that it was made after the suit had been commenced by delivering the writ' to the sheriff to be served. This presents the question whether the action could he maintained without a previous demand. ' It is settled that replevin in the detinet, as well as the cepit, will lie for a wrongful taking-, and in that case no demand is necessary. (Cummings v. Vorce, 3 Hill, 282.) Hannah Sharp took the note tortiously, and delivered it to the defendant. Trespass, or replevin in either form, might have been brought against…
2Cases cited1 opinion
- Bibbins v. NoxonNew York Supreme Court · 1830