Bond v. Mitchell
New York Supreme Court
This was an action of replevin. The second count of the declaration was as follows : “ And also for that the said defendant afterwards, to wit, on the first day of June, 1846, in the town of Shawangunk, in the county of Ulster aforesaid, took a certain horse, wagon, and harness out of the possession of the plaintiff, and to the possession of which the said plaintiff was and is lawfully entitled, of the value, of three hundred dollars, and unjustly detained, &;c. &c.”
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This was an action of replevin. The second count of the declaration was as follows : “ And also for that the said defendant afterwards, to wit, on the first day of June, 1846, in the town of Shawangunk, in the county of Ulster aforesaid, took a certain horse, wagon, and harness out of the possession of the plaintiff, and to the possession of which the said plaintiff was and is lawfully entitled, of the value, of three hundred dollars, and unjustly detained, &;c. &c.” The defendant demurred, and stated for cause of demurrer, that the said second count set forth the evidence of facts and…
1Opinion of the Court
By the Court,
Parker, J.
According to well established precedents, it should have been alleged in the declaration, that the articles replevied were the goods and chattels of the plaintiff.” (2 Chit. Pl. 364.) Instead of that, the plaintiff says the goods were taken by the defendant out of his possession, and that he was entitled to the possession of them. It is true, that proof that the defendant took the property out of the plaintiff’s *305possession, would support the allegation that they were the goods and chattels of the plaintiff; (Rogers v. Arnold, 12 Wend. 39;) but the plaintiff is not at…
2Cases cited4 opinions
- Rogers v. ArnoldNew York Supreme Court · 1834
- Wall v. OsbornNew York Supreme Court · 1834
- Prosser v. WoodwardNew York Supreme Court · 1839
- Anstice v. HolmesNew York Supreme Court · 1846
3Cited by8 opinions
- Scofield v. . WhiteleggeNew York Court of Appeals · 1872
- More, Reynolds & Co. v. LottNevada Supreme Court · 1878
- Burke v. ValentineNew York Supreme Court · 1868
- Benedict & Burnham Manufacturing Co. v. JonesMissouri Court of Appeals · 1895
- Johnson v. SimpsonIndiana Supreme Court · 1881
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