29 Wis. 221 | Wis. | 1871
A careful perusal of the somewhat voluminous bill of exceptions in this case, which is certified to contain all the testimony given on the trial of the cause, confirms in our minds the truth of the remark of the judge to the jury, that, “ after all, the whole evidence tends to but two or three points, and the case is really not so intricate as might at first thought be supposed.” It is really, on its merits, and without regard to purely technical points and objections, a case of no doubt or intricacy whatever. The plaintiff’s title and right of possession of the property in controversy was most clearly established, and with as much precision and particularity of evidence as the nature of the property, the number and diversity of the articles, and its situation, would admit of; and against the case so made the defendants offered the least possible proof, a mere spark as it were, consisting of an alleged verbal admission of the plaintiff, which was contradicted or fully explained on his part. With a verdict and judgment against them, so sustained on the merits and resting on grounds of substantial justice and right, the defendants come here seeking a reversal upon .points of the ■merest technicality, we might almost say, of cavil. As, under the evidence which was correctly received, the jury could not have found differently, the case is a proper one for the appliea
The objection to the demand made for the property was wholly untenable. The plaintiff was not required to commit assault and battery, or subject himself to an action for false imprisonment, by taking the defendant, in whose possession the property was, forcibly over the road to point out to and demand of him the delivery of each article by itself, in order to maintain his action. He could not even compel the defendant to read the list, or hear it read. It was enough that the defendant peremptorily refused to surrender any of the property to excuse any further effort at specification, or particular demand of the different articles, on the part of the plaintiff.
The charge of the court, contained in the first five instructions given at the request of the plaintiff, was clearly correct, and enough upon the subject. There may have been some inconsistency between the seventh instruction given on plaintiff’s request, and the first three points charged at the request of the defendant ; but this is immaterial, on the ground above stated, as indeed are all the other objections and exceptions urged.
By the Court — The judgment is affirmed.