Acker v. Burrall
New York Supreme Court
Demurrer to declaration. The plaintiff declared on a covenant executed by the defendant, whereby, after reciting that the plaintiff, as sheriff of the city and county of New York, had levied upon $8511 56 in bank bills, $300 in treasury notes and $150 in gold) by virtue of an execution in favor of John T. Smith'Ds.
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Demurrer to declaration. The plaintiff declared on a covenant executed by the defendant, whereby, after reciting that the plaintiff, as sheriff of the city and county of New York, had levied upon $8511 56 in bank bills, $300 in treasury notes and $150 in gold) by virtue of an execution in favor of John T. Smith'Ds. Horace Janes, and had on request left and permitted the same - to remain in the possession of the. now' defendant Burrall, the defendant in consideration of the premises and of one dollar to him in hand paid, covenanted and agreed with the;, plain tiff to deliver to him the said…
1Opinion of the Court
By the Court,
Cowen, J,
The pleas are clearly bad. The first plea does not deny that the money levied on was Janes’ at the time of the levy. It simply says, it was not his,, without saying when. The second plea admits that he was a joint owner, and non constat by this plea, but that, as partner, he might have owned the whole property except a common interest of a few cents in the defendant. But a decisive answer to both pleas, is that the defendant is estopped by his covenant to deny the plaintiff’s property ; at least, till he has been evicted by title paramount in some third person.
The…
2Cited by7 opinions
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- Given v. DriggsNew York Supreme Court · 1803
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