Bradish v. Schenck
New York Supreme Court
IN error, on certiorari, from a justice’s court. Schenck brought an action of trespass against Bradish, before the justice, for damage done by the hogs of the defendant, by breaking into the enclosure of the plaintiff, and destraying his corn, &c.
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IN error, on certiorari, from a justice’s court. Schenck brought an action of trespass against Bradish, before the justice, for damage done by the hogs of the defendant, by breaking into the enclosure of the plaintiff, and destraying his corn, &c. And the plaintiff produced the certificate of the fence-viewers, appraising- the damage, pursuant to the act, (24th sess. c. 78. s. 16.) at 7 dollars, The defendant pleaded, that the plaiAtiffliad distrained the hogs, and impounded them before the commencement of the suit; and that the plaintiff was not in possession of che land on which the…
1Per curiam
Letting land upon shares, if for a single crop, is no lease of the land, and the owner alone must bring trespass for breaking the close. (Cro. Eliz. 143.) Schenck and Curtiss were tenants in common off the corn; but the omission to join Curtiss was only to be taken advantage of by pleading it in abatement. (1 Saund. 291. G.)
We ought to intend that the action of replevin was at "an end when this suit was brought, if we can take notice of it all. It was not pleaded, arid the only proof of. its existence was by parol.
The judgment must be affirmed.
2Cited by27 opinions
- Taylor v. . BradleyNew York Court of Appeals · 1868
- Morrill v. Mackman.Michigan Supreme Court · 1872
- Harris v. . FrinkNew York Court of Appeals · 1872
- Van Hoozier v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1879
- McNealy v. StateSupreme Court of Florida · 1879
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