Smith v. Fairbanks
Superior Court of New Hampshire
Trespass, to recover the value of a cow alleged to have been taken on the 20th of August, 1850. With the general issue the defendant filed a brief statement, setting forth that on the 27th of March, 1847, the cow was duly mortgaged, by one Charles L. Senter to one Silas S. Whitney, to secure the payment of a note of hand-for $22, and interest, given to Whitney by Senter, and payable in December following; and that the note being unpaid and the mortgage uncancelled, the cow…
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Trespass, to recover the value of a cow alleged to have been taken on the 20th of August, 1850. With the general issue the defendant filed a brief statement, setting forth that on the 27th of March, 1847, the cow was duly mortgaged, by one Charles L. Senter to one Silas S. Whitney, to secure the payment of a note of hand-for $22, and interest, given to Whitney by Senter, and payable in December following; and that the note being unpaid and the mortgage uncancelled, the cow was taken by the defendant, by virtue of the mortgage, as the servant of Whitney, and by his direction. To prove the…
1Opinion of the CourtWoods, J.
The exception to the competency of Senter, on the ground of interest, we think, was well taken. On the voir dire, he stated that he sold the cow to the plaintiff for $26, and that he had previously mortgaged her to Whitney, to secure the payment of $22. The point in issue between the parties was the property of the cow. He also stated that he sold the cow to the plaintiff, as being at the time the property of the witness. The sale, then, was attended with an implied warranty of title on the part of the witness. It was not a sale and warranty of his interest merely in the cow, be that what it…
2Cases cited1 opinion
- Kingsbury v. SmithSuperior Court of New Hampshire · 1842