Jenkins v. Pell
New York Supreme Court
Error from the supreme court. Jenkins brought an action of replevin against Pell, in the New-York common pleas. The defendants avowed the taking of the goods in question for rent in arrear, setting forth the making of an affidavit of the amount of rent due, See. and the delivery of a warrant of distress to a marshal of the city, by virtue whereof the goods were taken. The affidavit, made on the 26th April, 1834, was in these words : “ City and county of New-York, ss.
Read the full summary
Error from the supreme court. Jenkins brought an action of replevin against Pell, in the New-York common pleas. The defendants avowed the taking of the goods in question for rent in arrear, setting forth the making of an affidavit of the amount of rent due, See. and the delivery of a warrant of distress to a marshal of the city, by virtue whereof the goods were taken. The affidavit, made on the 26th April, 1834, was in these words : “ City and county of New-York, ss. Ferris Pell, being duly sworn, says, that Thomas Jenkins is justly indebted to him in the sum of one hundred dollars, lawful…
1Opinion of the Court
After advisement, the following opinions were delivered :
By the Chancellor.
There is no foundation whatever for the objection which was made in this case, that the warrant or *452power to distrain, produced on the trial, varied from that set forth in the avowry. Where the law requires an instrument to be under seal to authorize a particular remedy thereon, it is necessary, in pleading, to state the fact that it was under seal, either in terms or in other language from which the fact that it was under seal can be legally inferred. But where, as in this case, it was wholly immaterial whether the…
2Cases cited1 opinion
- Marquissee v. OrmstonNew York Supreme Court · 1836
3Cited by2 opinions
- Joynes v. WartmanCourt of Appeals of Maryland · 1853
- Gallavan v. GallavanNew York Supreme Court · 1900