71 F. 469 | 7th Cir. | 1896
after stating the facts, delivered the opinion of the court.
The objection that the action of replevin will not lie cannot be sustained. There would seem to have been some confusion in the decisions of the English courts whether replevin would lie in a case where there had been no unlawful taking. So uncertain were the holdings in the mother country that two great states came to diverse conclusions upon this subject. It was held in New York that the action lay only for goods unlawfully taken and detained (Pangburn v. Patridge, 7 Johns. 140; Barrett v. Warren, 3 Hill, 348); while, upon the other hand, the courts of Massachusetts held that at common law replevin was the proper remedy for goods unlawfully detained, without reference to the mode by which the possession had been acquired (Ilsley v. Stubbs, 5 Mass. 284; Badger v. Phinney, 15 Mass. 359; Baker v. Fales, 16 Mass. 147; Marston v. Baldwin, 17 Mass. 606). We think, however, that the keynote of the whole discussion was sounded by Lord Chief Justice Denman in Evans
At the trial numerous instructions to the- jury were requested of the court by the plaintiff in error, and refused, and excepted to, and numerous exceptions were taken to portions' of the charge of the court to the jury, principally with reference to the construction of the contract, and with reference to the alleged custom in the light of which, it is said, the contract should be read. We are compelled to hold that these exceptions cannot properly be considered. The assignment of errors asserts that the court erred “in refusing to instruct the jury as requested by the said defendant, a copy of which instructions, so requested and refused, with the ruling of the court, and exceptions of the defendant thereto, is hereto annexed and marked ‘Exhibit A.’” Then follow seven different instructions, separately stated, properly numbered, and in numerical order. Another assignment of error is “that the court, in said trial, erred in instructing the jury as to those portions duly objected and excepted to by the defendant, a copy of said instructions, with the exception of the defendant thereto, being hereto annexed and marked ‘Exhibit B,’” which exhibit discloses some five portions of the charge, separately stated, properly numbered, and in numerical order. In Railroad Co. v. Mulligan, 14 C. C. A. 547, 67 Fed. 569, this court held that such an assignment of errors could not be considered. The writer dissented from the decision, but it is the ruling of the court, and must be followed. See, also, Vider
‘The judgment will be affirmed.