Atkinson v. Holcomb

4 Cow. 45

• Court: New York Supreme Court
• Decided: February 15, 1825
• Status: Published

Opinion

Per Curiam.

The only difference which the determination of this motion can make in the rights of the plaintiff, lies between considering the action in nature of a trespass de bonis asportatis, and properly an action of replevin. In the former case, he may retain his venue upon the usual stipulation—in the latter, it can not be changed, in any view upon the facts disclosed, because it is in its nature local. It is true, that replevin lies for a trespass de bonis asportatis, or for a wrongful distress either for rent or damage feasant. In general, however, it is a local action, the place being material and traversable; and we have looked into all the authorities upon the question, to see if there be any exception. We find none ; and without saying whether it might not stand on the same footing as an action of trespass de bonis asportatis, where it appeared, upon the motion, to have been brought for that cause, we deem it our duty to treat it as, prima facie, local. Where nothing appears, therefore, of the particular nature and object of the action, as in this case, but merely that it is an action of replevin, we hold it within the general rule; and the motion must, therefore, be denied.

Motion denied.