Barney v. Dewey

ja«B wBoaon dcfeSdsnt*,0 the plaintiff was in- and was, after by the rightful iecéss’ary toset forth .the contract between the parties, or tZ co°movíng tiftmto,lthepIadematter "eating “on or damages, cafe'eof a gm, be ltakto r>“ a to the title, A recovery from the venee by the rightfull owner, is conclusive evidence against the vendor. típ’n íuteTtíat e»!den"ewfihe trial of the Suit, In which such recovery was had, in favour of the true owner of the chattel, this is tantamount to an averment of nouce of the pendency oi the suit.

This was án áctiéú of tfespriss ori the case.. , í^hé déclafe* contained ohé coünt, in which it was stated, that thé dfefondant, on the 1st of July, 1811, at the town of Fori Ann, in the county of Washington, intending to deceive rind defraud the plaintiff, did encourage him to buy a certain bay horse, théii in the possession of the defendant, of the value of 1A0 dollars^ and falsély, &c.,.affrmed that the said horse belonged to him, . the defendant, and that he had a right to sell rind dispose of a? otWV anc* thereby Caused.thé'plaintiff to purchase sa® horse, which the defendant delivered as his' horse ;’,áhd tbati-lbé' plaintiff,-cónfidiñg in thé defendant’s riffirrriritió'n, plirchased the said horse of him, the said defendant, and satisfied him therefore ; whereas, in truth, at the time of the said affirmatíon and' delivery, the défendáíít vtris riot Owner of the saitf horse, átid had no right to sell hirrij but the hófsé bélóhgéd to one Thadeus Deniéy, aridi-the de'fe’ndriht riveií knew thé' same : ‘ ' ^ Dezioey^ brought ati °£ troV-eY-ift the comtiiOn píeas - of the' county of Wáshiñgtó% thej plaintiff, .for the value of the' said horse; that thé' plaintiff retained ari attorney and tWo counsel-fo defend' thé' same; but that, at the' May tefra of the said: court of Cfimrifoti' .pleas, tile said Thadeus Dewey recovered against the plaintiff 113 dollars and 80 cents damages, and 89 dollars and 16 cents costs and charges, which sums of money the plaintiff has paid and satisfied ; that the plaintiff procured the attendance of several witnesses at the said trial ; and that the defendant did then swear, in behalf of Thadeus Dewey, that the horse did, at the time of delivery, belong to: Thadeus Dewey, and that he, the defendant, had no right to part with him ; by reason of which testimony, the jury found a verdict against the plaintiff. By, reason of which false, &c., assertion and affirmation, See. To this declaration the defendant demurred specially, and showed, for causes of demurrer, first, Because, it is alleged that the defendant caused, and procured the plaintiff tq buy the said horse, by affirming that the said horse belonged to the defendant, without setting forth the contract between the parties, or any consideration moving the plaintiff 'to buy of the defendant. Second, That no contract was set forth;, or that the plaintiff gave the defendant any valuable consideration. Third, Because the plaintiff hath founded his right of action upon the fact of an action brought against him by one Thadeus Dewey, for the . value of the horse, and his recovery thereof. Fourth,, Because the plaintiff hath spread upon the record the proceedings in the action against him by Thadeus Dewey, and the testimony given by the defendant therein, . ' The plaintiff joined in demurrer.