Williams v. Welch

5 Wend. 290 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

I am inclined to think the common pleas was right in directing the plaintiff to proceed as if the plea of non cepit had been put in. The plea of cepit in alio loco does not admit the taking as the plaintiff has laid it; it traverses the place, and in this action the place is material. The plea denies the taking at the place, an issue was therefore joined upon the place, and the plaintiff was bound to prove the taking at the place laid in his declaration.

The fact being proved upon which rested the question as to the county in which Grand Island was situated, the court properly nonsuited the plaintiff, provided the action of replevin is local. The books which treat of this action, speak of it as local, because the place is material and traversable. 1 Saund. 347, n. 1. 2 Chitty's Pl, 364, n. c. lid. 161. In Atkinson v. Holcomb, 4 Cowen, 45, 6, this.action was treated as local, although we there said that where replevin appeared to have been brought for a cause for which trespass de bonis asporlatis might have been brought, such an action might be an exception to the general rule that replevin is a local action ; but even if the action were not strictly local the common pleas, I apprehend, decided correctly upon the facts presented to them—the process of the court must be executed within its jurisdiction, and if executed bej'ond its jurisdiction, no action is legally pending.

I am therefore of opinion that the judgment below must be affirmed.