1 Neb. 204 | Neb. | 1871
Upon the trial of this cause in the court below, the jury having been out awhile, returned into court and announced that they were unable to agree, because of differences among them upon questions of law as well as upon questions of fact. The judge, thereupon, gave them additional instructions, after which they returned a verdict. We see no error in this. The practice is quite usual. Jurors not unfrequently disagree in their recollections of testimony, or misapprehend the language and meaning of the judge’s charge, and there can be no impropriety, with the parties present, in having the court repeat what has already been said, or add that which may be proper in the case for the enlightenment of the jury. It is better than that the jury should be driven into finding a verdict, in ignorance, or under misapprehension, or that the parties should be subjected to the expense and annoyance attending a disagreement. We think, however, that the exception was •well taken, to so mock of the charge so given, as directs the jury that, “if in this particular case you find no demand, you should find for the defendant.”
The action was replevin brought by Homan against
Regarding the question of demand then, as one of fact, liable to be determined against the plaintiff, the instruction of the court in respect to it became quite maternal. Particularly is this so in view of the circumstances under which it was.given. This charge was upon one of two points for advice upon which it appears the jury had returned. They could not have found Lahoo to be the owner of the property : else, why concern themselves about a- demand. So, while it is probable that, in the opinion of the jury, Homan was the owner of the property, this instruction of the court, directing them to find unqualifiedly for the defendant, in case of no demand, may have been the inducement to the verdict given. This cannot be the law. Where a defendant has come rightfully into possession of property in an action of trover and conversion, we can readily see the importance of- evidence of demand. There the action proceeds upon the tortious act of converting plaintiff's property. To show him guilty of this, evidence of a demand and a refusal while he was possessed of the property, is introduced. So in the case of dependant covenants, to
Section 191 directs that: “ In all cases where the property has been delivered- to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of the property, or the possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant, for which, with costs of suit, the court shall render judgment for the defendant.”
In the case before us, Homan claimed the property as pledgee. Laboo answering, does not disclaim ownership, nor put in the plea of non detinet, under which, with the right of Homan established as pledgee,' he might have claimed protection from costs, as an innocent party upon whom no demand had been made ; but beside denying Homan’s claim, and charging conspiracy between Homan and Ward, he avers, “ that he is the owner of said mules,
Reversed and remanded,