Hymann v. Cook ( 1848 )

This was an action of replevin brought by Hymann against Cook and others in the Hew York Common Pleas, for taking nine casks horn tips. On the trial the plaintiff was non-suited, on the ground that there was no evidence of a wrongful taking, but at most only of a wrongful detention of the goods, and a return was ordered to the defendants. Plaintiff excepted. Hymann brought error to the Supreme Court. The defendants pleaded to the assignment of errors in bar, that the writ of error was not brought within two years, &c. Plaintiff replied infancy, and that he brought the writ within two years after majority, &c. Defendants rejoined, taking issue upon plaintiff’s allegation, in his replication. The issue of fact thus joined, was tried at the circuit, and a verdict was found in favor of the plaintiff. The plaintiff then, (January term, 1846,) moved the Supreme Court, upon the trial record, for a rule reversing the judgment of the Common Pleas, as a matter of course. The court held that they could not reverse the judgment without looking into the record to see if there was any error. (Reported 2 Denio, 201.) In October term, 1846, the Supreme Court affirmed the judgment upon the whole record. This court affirmed that judgment. (Hot reported.)