Browne v. Cochran

46 How. Pr. 427

• Court: New York Supreme Court
• Decided: February 15, 1873
• Status: Published

Opinion

Van Brunt, J.

This action is brought to recover possession of ascertain paper alleged to be a deed of certain property in Ireland. The objection is made by defendants that it is a case of replevin, and a suit in a court of equity was not necessary. The answer to that objection is, that a judgment in replevin provides for the verdict of the jury to place a valuation on the property claimed, which it would not be possible to do in this case, as, in consequence of the peculiar nature of the instrument sought to be recovered, there is no basis upon which its value could be assessed, and we cannot determine whether it is worth anything or not.

Beside, in replevin the property taken can be counter-bonded by the defendant, and such action upon the part of the defendant in such a case as this would entirely defeat the object of the suit.

It seems to me, therefore, that there is no complete remedy at law, and an action in equity must be brought.

A new trial must be had in this action, because error was committed in excluding the evidence of J. H. Lipsett as to what took place between himself and his mother at the time the deed was received by Lipsett.

Mrs. Browne, the plaintiff, having been examined as to what took place at that interview, the last clause of section 399 withdraws the prohibition contained in the first part of the section.

Because of this.error a new trial must be had.