TaiLexi AI U.S. Case Law

Wilson v. Conine

Wilson and Gibbs against Conine

Wilson v. Conine, 2 Johns. 280 (N.Y. Sup. Ct. 1807)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
New York Supreme Court · State Trial Courts
Decided
May 15, 1807
Judges
Kent
Citations
2 Johns. 280
Cited by 22
Headnotes
fication^f'*a decretal order of a court of chancery', dicutiórf topis' sue after the affiirmauce,iD the court of errors, of a prior decree, is not admissable evidenceonatn al in a court of law,but the original decree must be produced. An execution from chancery will not be received in evidence, without producing the original decree on which it was founded. In an action of trover, interest od the value of the chattels from the time of the con* version, may be allowed by way of damages. On an application to the equity of this court, they will take notice of the rule in chancery, that pertnership property, taken in execution for a separate debt of one of the partners, cannot be held against the joint-creditors ; nor can the share of such partner be applied to the separate debt, until after the partnership accounts have been taken and settled.
Summary
This was an action of trover for a quantity of rum.— Ulea not guilty. The cause was tried at the Greene Cir-Cuii, on the 4th December, 1806, before Mr. Justice Spencer‘ At the trial, the plaintiffs proved that they were in possession of the rum, ánd that the defendant had taken it . . ■ away, though forbidden to do so by the plaintiffs, The defendant’s counsel then stated that he should prove, that the defendant purchased the rum at a sale made by the sheriff, by virtue of an execution issued out of the court of chancery, on a decree in the said court against Gibbs, who, at the time of sale, was a partner in trade with Wilson. The defendant then offered in evidence an exemplification, under the seal of the court of chancery, of a record of a decretal order in the cause in which the execution issued. This was rejected by the judge, who was of opinion,- that the original decree must be produced. The execution was then offered, but. was rejected by the judge, unless the original decree, on which it was founded, was also produced. The judge charged the jury to find for the plaintiffs the value of. the rum, with interest. The jury accordingly found a verdict for the plaintiffs. The case was submitted to-the court without argument. The following points were stated for the consideration of the court : 1. Whether the exemplification offered by the defendant ought not to have been received in evidence ? 2. Whether the execution ought not to have been admitted ? 3. That the jury ought not to have been directed to allow interest. 4. That it was owing to the slip and inadvertence of the party that the plaintiff obtained a verdict.*

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Kent

Text extracted by OCR from a scanned original; check the original for exact wording.

Kent, Ch. J.

delivered the opinion of the court.

1. The.paper offered in evidence by the. defendant, and rejected by the judge, was an exemplification under the seal of the court of chancery, of a decretal order awarding execution on a prior decree. This decretal order recited the substance of a decree of the court for the trial of impeachments and the correction of errors, which affirmed the prior decree of the court of chancery, and ordered it *281 to be carried into execution* I think the paper offered was insufficient, and that it was requisite to have produced the original decree, which was the basis-of the execution. It would be too great a relaxation of the rules of evidence, to allow the recital of a decree to be a substitute for the deeree itself. •

2. The execution was also properly rejected, as being no justification to the vendee in a sale under it, without producing the judgment or decree warranting it. 8 Co. 97. 1 Blacks. Rep. 69. Britton v. Cole. Salk. 408.

3. The jury were' competent to allow interest on the value of the chattel from the time of the conversion by way ,of damages. ( 1 Johnson, 65 .) There is'nothing in the case from which we can infer that the interest was an unreasonable measure of damages.

4. As to the last point, it is probable that the omission to produce the original decree arose from the slip and inadvertence-of the defendant’s counsel, but the question is, whether the -merits- of the ease are so strongly with the defendant as to require our interposition. On the defendant’s own showing, he was entitled only to an undivided third part of the rum ; and it was proved that he took it out of the plaintiffs’ possession, contrary to their will, and when they had the greatest portion of interest in it, and an equal right to the possession. • As this last point is an appeal to our equity, we cannot but take-notice of the rule in chancery from whence the execution in the present case proceeded, that partnership property taken in execution for a separate debt, cannot be held against joint creditors, and that the share of such partner for his separate debt is to be applied, only after-the partnership accounts arc-taken and settled. (4 Vesey, jun. 396.)

We are therefore of opinion, that the verdict ought not to.be set aside. .

Judgment for the plaintiffs.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 22 cases

View all citing references →
1823–1824: 21827–1828: 21833–1834: 11845–1846: 11847–1848: 21849–1850: 11855–1856: 11857–1858: 11863–1864: 11865–1866: 11869–1870: 11873–1874: 21877–1878: 11879–1880: 11883–1884: 11885–1886: 11891–1892: 11905–1906: 118232026peak 1823 · 2

Relies on it most ⓘ

  1. Rankin v. Schofield98 S.W. 674 (Ark. 1905)
  2. Smith v. McMicken3 La. Ann. 319 (1848)
  3. McCormick v. Fitzmorris39 Mo. 24 (1866)
  4. Trevino v. Fernandez13 Tex. 630 (1855)
  5. Thomas v. Whallon31 Barb. 172 (N.Y. Sup. Ct. 1857)
  6. Jarvis v. Sewall40 Barb. 449 (N.Y. Sup. Ct. 1863)

Most recent

  1. Rankin v. Schofield98 S.W. 674 (Ark. 1905)
  2. Drexel v. Pease13 N.Y.S. 774 (N.Y. Sup. Ct. 1891)
  3. Scruggs v. Burruss25 W. Va. 670 (1885)
  4. Woolsey v. Seely1 Wright 360 (1883)
  5. Stockwell v. Woodward52 Vt. 228 (1879)
  6. Weston v. Conant1 N.Y. City Ct. Rep. 224 (1877)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

No citations to other opinions in this database were found.

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list