15 Wis. 195 | Wis. | 1862
By the Court,
On the trial of this action at the circuit, the court was asked by the appellant to instruct the jury, in effect, that to entitle the plaintiffs to recover, they must prove that the interest of the plaintiff, Bridget Duress, in the wood at the time it was taken by him, was her sole and separate property, and that if there was no testimony to establish that fact, the verdict must be in his favor. The court refused this instruction, but charged the jury that under the complaint and answer, it was not necessary to prove that the interest of Bridget Duress in the wood was her separate property; that if the appellant wished to raise that question, he should have done so in the answer, and not having done so, the question was immaterial and not in the case.
This was an action of trespass, brought by the respondents as partners to recover the value of 117 cords of wood taken and carried away by the appellant. The defendant, among other things, justified the taking of the property, as sheriff, by virtue of two executions issued against Robert Duress, the husband of Bridget.
It appeared on the trial that Bridget Duress was a married woman at the time the wood was purchased by the respondents. An effort was made by the respondents to show that Bridget had property of her own at the time she entered into partnership with Patrick Duress, but the evidence was objected to, and ruled out by the court.
As the respondents obtained judgment under the instructions of the court, they took no appeal, and the ruling of the court in excluding the evidence that Bridget had separate property, with which she engaged in the business of “ rectifying whisky,” is not before us for review.
The defense to the action evidently was, that the property was not that of Bridget, but the property of Robert, her husband, the defendant in the execution. She being a married
The instruction asked for on the part of the appellant, was directly and pointedly applicable to the facts of the case, and should have been given. The counsel for the respondents suggested that the appellant was not in a position to take advantage of the error in refusing to give the instruction, because he had successfully resisted the effort made on the trial to show that Bridget had separate property at the timé she entered into partnership. But this is a mistake. To entitle her to recover, she was required to show by satisfactory testimony, that the wood was purchased with her own estate and was not liable to the debts of her husband. If she attempted, and failed to make out her case by competent testimony, under the ruling of the court, she was unfortunate. But this does not cure the error in refusing to give an instruction pertinent to the issue. And we suppose the real point in issue was, whether the wood was purchased by Bridget with her own means, or whether it really belonged to her husband and was liable to be seized by his creditors in execution.
We cannot see that it was necessary for the appellant to raise that question in any more direct manner than he did by the pleadings. It was inevitably involved in the issues made when the wife claimed that the property belonged to her, and the appellant alleged that it belonged to her husband.
It follows from these views that the circuit court erred in refusing the instruction asked by the appellant, as well as in the general charge to the jury.
The judgment is reversed, and a new trial ordered.